Communication concerns lead to paid leave and subsequent employment status dispute
The Fair Work Commission (FWC) recently examined a general protections claim involving a worker who argued she was dismissed from her employment while her employer maintained she remained an employee.
The case arose after the worker was placed on paid leave following concerns about her workplace communications, leading to a dispute about whether her employment had actually been terminated.
The worker initially claimed she had been constructively dismissed when placed on paid leave, arguing her return to work had been rendered "professionally and ethically untenable."
She later filed a second application claiming she had been formally dismissed, pointing to various actions by the employe, including removal from company systems and receipt of termination payments.
The employer contested both claims, maintaining throughout that the worker's employment had not been terminated and that she remained an employee. The company argued that any administrative actions, including payroll processing, were errors and did not constitute a dismissal of the worker from her position.
Workplace communication concerns trigger paid leave
The employment relationship involved a worker employed by a neurophysiology services company who received a "first and final warning" on 27 April 2025 for an alleged serious breach of "internal communication process" by the CEO.
Early the following morning, the worker wrote to the CEO, noting she was available to arrange travel for training, subject to compliance with the Health Professionals and Support Services Award 2020.
The CEO responded by email, placing the worker on paid leave, stating: "Considering your email below and the complexities discussed, the decision has been made to place you on paid leave and not to travel you to [location] this week for training, case attendance and education. You have made several significant claims and requests that have been documented in numerous emails over the past 48 hours that will need further review by management."
The worker was relieved from formal duties, including clinical and administrative tasks, and placed on paid leave from 28 April until 2 May 2025. She was instructed not to engage in clinical discussions with colleagues or attend meetings during this period, with her only company interaction to be with specified personnel for equipment return purposes.
Annual leave period followed by return dispute
The worker was scheduled for annual leave from 3 May to 26 May 2025, with additional leave without pay from 19 May to 23 May 2025, which had been previously granted at her request.
During her leave period, on 19 May 2025, the worker wrote to the CEO advising that she considered the employer's conduct had resulted in her constructive dismissal, effective 28 April 2025, and suggested she would lodge a general protections claim.
On 20 May 2025, the CEO responded indicating that the company did not consider the worker's employment was at an end and that she remained an employee. The CEO reiterated this position on 22 May, stating:
"Your employment did not end on Monday, 28th April 2025. Up until receipt of your email on 19 May we were expecting you to return from your pre-scheduled leave on Monday, 26 May 2025 and were planning accordingly."
However, the CEO also indicated that given the worker's assertion that she had been constructively dismissed and her apparent intention not to return to work, the company would remove her email access after 26 May 2025 unless she elected to return to work and perform her duties.
Worker fails to return
The worker was due to return to work on 26 May 2025 but did not attend. On that day, there were email exchanges between the worker and the CEO regarding the collection of company equipment.
The CEO advised that a courier was booked to pick up equipment belonging to the company and sought confirmation that the equipment was ready for collection.
The worker replied that she would comply with returning the equipment but that the items were not ready for collection.
The CEO responded indicating she expected the equipment would be ready by the next day and advised that since the worker had not returned to work that day, her access to company email and other software would be removed.
The worker remained a member of various group chats relating to the company's business until 27 May 2025, being removed only after she had not returned to work on 26 May 2025. The FWC noted there was no further correspondence exchanged between the parties after this point.
Company communications suggest employment ended
On 28 May 2025, the employer sent an email to employees advising that the worker "is no longer with [the company]. We thank her for her contributions during her time with us and wish her all the best in her future endeavours."
On 29 May 2025, the worker was "offboarded" by the employer's payroll system, with documentation confirming this process.
On 29 May 2025, the employer sent the worker a payslip which included "employment ended: 23/05/2025" and "termination payments" for leave loading and unused annual leave.
The worker received this payslip on 29 May 2025, which became a key piece of evidence in determining whether a dismissal had occurred.
The employer later referred to the issuing of the payslip as an administrative error, arguing this did not constitute an actual termination of employment.
However, the FWC would examine whether these actions, taken together, demonstrated an intention by the employer to end the employment relationship.
FWC examines dismissal evidence and timing
The FWC first considered whether there had been a constructive dismissal under section 386(1)(b) of the Fair Work Act, which requires that a person has resigned but was forced to do so because of employer conduct.
The Commission found: "There is no evidence that [the worker] resigned. [The employer's] position is clearly that [the worker] took no action that could be considered a resignation as their position is that the employment remains on foot."
The Commission then examined whether the employment relationship remained ongoing as asserted by the employer. The FWC noted that when the worker did not return to work on 26 May, the employer removed her from email and software connections on 27 May, advised other staff on 28 May that she "was no longer with [the company]," and on 29 May "offboarded" her from the payroll system.
The Commission found: "Objectively, this was action by the employer that either intended to bring the employment relationship to an end or had that probable result." The FWC noted that while the payslip referred to a termination date of 23 May, "a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed."
Jurisdictional objection dismissed
The FWC determined: "Therefore, I am satisfied that the dismissal did not take effect until 29 May" when the worker received the payslip.
The Commission rejected the employer's claim that issuing the payslip was an administrative error, stating: "This is not accepted as it is inconsistent with the objective evidence. There was a clear and deliberate decision by the employer to 'off board' [the worker] and end her employment."
The Commission found that the employer's communication to staff that the worker "is no longer with [the company]" was consistent with a deliberate decision to terminate employment.
The FWC concluded that the combination of removing the worker from systems, communicating her departure to staff, processing her through payroll termination, and issuing termination payments demonstrated clear employer initiative to end the relationship.
The FWC concluded: "For these reasons, I am satisfied there was a termination of employment at the initiative of the employer which took effect on the 29th of May 2025 when [the worker] received her payslip.
Therefore, I'm satisfied [the worker] was dismissed within the meaning of s.386 of the Act." The Commission dismissed the jurisdictional objection and ordered that the matter be listed for conference in due course.
