FWC decides whether resignation in heat of moment counts as being fired
The Fair Work Commission (FWC) recently dealt with a general protections application where a worker claimed he was dismissed during a workplace incident that occurred on a particularly busy weekend.
The worker argued that his departure from employment wasn't voluntary but rather a dismissal disguised as a resignation.
Central to the dispute was whether the worker had genuinely resigned or was forced to leave due to workplace conditions and management conduct.
The worker maintained that overwhelming workload pressures and confrontational management interactions left him with no real choice but to end his employment.
The employer, Mercure Port of Echuca, argued that the worker had clearly and voluntarily resigned from his position.
The worker served as a hotel cleaner for the employer, performing duties that included cleaning reception areas, public toilets, conference rooms, restaurants, BBQ areas, and bins.
He also managed linen distribution, stocked storerooms, maintained cleaning trolleys, stripped rooms, and collected rubbish from guest rooms. According to his evidence before the FWC, he generally enjoyed his work and found the role satisfying.
The employment relationship began deteriorating during the weekend of 22-23 February 2025. The worker testified that the workload was exceptionally heavy and the weather in Echuca was particularly hot that weekend. Despite scheduled breaks for staff, he claimed he couldn't take his allocated rest periods because he was "too busy".
The situation escalated when the housekeeping manager gave him a note about returning to areas where cleaning tasks remained incomplete, specifically mentioning uncleaned mats and a coffee or milk spill that needed attention.
The worker admitted his frustration led him to raise his voice at the housekeeping manager and respond with "yes miss" in what he acknowledged was a sarcastic manner.
This confrontation immediately triggered a meeting with senior management.
The meeting involved the worker, the general manager, the housekeeping manager, and the acting housekeeping supervisor.
The acting housekeeping supervisor testified that during the meeting "[the worker] threw his keys on the desk and indicated he was leaving" and that he explicitly stated "I quit". The general manager supported this version, testifying the worker said he was resigning.
The worker's own account, however, changed between hearings. At the mention hearing on 31 March 2025, he agreed he had resigned but insisted it was "in the heat of the moment". During the substantive hearing on 7 May 2025, he altered his testimony, claiming he asked "am I being fired?" instead.
The evidence clearly showed no employer representative had indicated any intention to dismiss him. The acting supervisor's unchallenged testimony confirmed she explicitly told him she wasn't sacking him but "simply wanted to complete a conversation with him as to the work required".
Despite this assurance, the worker responded "Well, beat you to it" before leaving the premises. His own evidence acknowledged his "intention was to resign", though he remained uncertain whether he explicitly said "I quit".
The immediate aftermath of the meeting proved crucial to determining the resignation's nature. Approximately one hour after leaving, the worker telephoned the general manager at the main reception.
Though the general manager missed the initial call, he returned it shortly after. The worker initially disputed this phone call occurred but later conceded it took place during the jurisdictional hearing.
During this conversation, the worker "apologised for his actions, however confirmed that he did not intend to return to the workplace". Significantly, he didn't seek to retract his resignation during this call.
Following this conversation, the general manager accepted the resignation and promptly emailed the payroll person that same day confirming the worker had resigned. When the worker attended the workplace two days later seeking reinstatement, the employer didn't meet with him.
The FWC needed to determine whether this sequence of events constituted a genuine resignation or a constructive dismissal.
The FWC applied well-established legal principles summarised by Deputy President Hampton in Tao Yang v SAL HR Services Pty Ltd. These principles recognise that employers can generally treat clear and unambiguous resignations at face value.
However, special circumstances arise when resignations occur "in the heat of the moment or under extreme pressure", potentially creating a duty for employers to confirm the resignation intention.
The test examines whether the employer engaged in conduct that "forced" the resignation, leaving the employee with "no effective or real choice but to resign".
The FWC noted that "considerable caution should be exercised in treating a resignation as other than voluntary" where employer conduct is ambiguous. An objective analysis of both parties' conduct is required to determine whether termination occurred at the employer's initiative.
The worker's evidence about workload and workplace conditions proved inconsistent throughout proceedings.
He initially emphasised the heavy workload on 22-23 February, describing it as particularly challenging. However, when asked directly whether he felt he had no option but resign because of the heavy workload, he replied "no not under the heavy work, I like my job".
His evidence about breaks also varied significantly. He first claimed ongoing difficulty securing breaks but later admitted this issue "had been resolved some weeks prior to his resignation".
Despite this earlier resolution, he maintained he still couldn't take breaks. However, he ultimately conceded: "Just on the break situation it didn't really bother me on the break situation". This shifting testimony undermined his claims about intolerable working conditions forcing his resignation.
The general manager testified that employees could take their award-entitled breaks. The acting supervisor confirmed "all the work [the worker] was asked to do was in his job description", which the worker acknowledged during the hearing.
Evidence also showed "at least two other employees were also behind schedule" that weekend, suggesting the workload challenges weren't unique to the worker's position.
The FWC made specific credibility findings, noting the worker "was earnest in the way he gave his evidence but struggled to maintain focus on the various issues under consideration".
While attributing some inconsistency to his "evident difficulties with literacy", the FWC stated it preferred the "consistent and credible" evidence of the employer's witnesses where facts were disputed.
The FWC found special circumstances existed because the worker resigned "impulsively and under some pressure" while "somewhat fatigued and frustrated by the amount of work he was undertaking in the relatively hot weather".
This required the employer to allow reasonable time before accepting the resignation. However, the employer fulfilled this obligation by not immediately accepting the resignation and taking the worker's subsequent phone call.
The FWC concluded: "There was no additional duty for them to confirm the intention of [the worker] when [the worker] had made it clear in the subsequent phone conversation that he would not be returning."
Regarding forced resignation, the FWC stated: "[The worker] was no doubt under work pressure on the relevant weekend, however, his resignation appears to have been motivated more by his frustration at having been required to clean an area he believed he had already cleaned."
The FWC found he chose to "beat [them] to it" despite "no evidence that [the employer] was moving to terminate [the worker]".
Ultimately ruling: "Therefore, I'm not satisfied [the worker] was dismissed within the meaning of s.386 of the Act", the FWC upheld the jurisdictional objection and dismissed the application.
