Fair Work underscores importance of clarifying worker's intention
The Fair Work Commission (FWC) recently dealt with a worker’s claim that his termination was ended at the employer’s initiative when he resigned “in the heat of the moment.” He asserted that the employer should have clarified his intention, especially since he left in an emotional state.
Philip Li filed an application before the FWC, alleging wrongful dismissal by Michael Vaux Pty Ltd t/a Malvern Tyre & Service (Malvern Tyres). Malvern Tyres disputed the claim, asserting that Li resigned voluntarily.
Malvern Tyres is an independent garage providing automotive services, including selling tires, performing logbook services, and offering roadworthy certification. Philip Li worked for Malvern Tyres for 20 years, with 11 years under its direct employment.
On December 7, 2023, an altercation between Li and Michael Vaux, the business owner, occurred at the workplace, leading to differing accounts of Li's departure. Vaux claims Li abruptly quit during an argument, while Li asserted he left due to illness but was accused of resignation.
Workplace dispute leave to departure
According to records, the dispute stemmed from concerns that Li had not completed assigned tasks, which he denied. Vaux claimed that around 10:15 am of the incident date, Li, when asked to work, became agitated and declared he was leaving, saying, "I am leaving, I quit."
Li later stated he didn't refuse work but felt ill and needed to see a doctor. He left the premises but returned to return the store key and collect his toolbox. During this, Li and Vaux exchanged words about a company car, with Li insisting it was his. Li sought medical attention and obtained a note certifying his unavailability until December 14, 2023.
Later, “Ms. Ho,” Li’s wife, received calls from Vaux, who complained about Li wanting to leave due to illness and discussed Li's performance issues. Ho advised Vaux to dismiss Li if he was frustrated, to which Vaux agreed.
Vaux then responded to an email from Ho, stating that Li had resigned and wasn't entitled to personal leave. He offered re-employment with a final written warning, which Li declined due to illness. Vaux then confirmed Li's resignation and informed him of termination pay, which was paid on December 15, 2023.
Did the worker resign?
Li maintained that he did not resign but left due to illness, supported by medical documentation. On the other hand, Vaux insisted that Li resigned and offered him re-employment under specific conditions, which Li rejected.
Despite no explicit resignation letter, Li's actions, including leaving and returning to drop off keys and collect belongings, were interpreted by Malvern Tyres as resignation. However, the FWC found that the circumstances suggest a momentary emotional reaction rather than a genuine intent to resign.
The FWC further said that Li had acted in a similar manner in the past. “Vaux gave evidence that Li had left the premises previously in an emotional state and that he had always returned to work afterwards. Other evidence suggested this had occurred five or six times,” the FWC said.
"In the situation that arose on 7 December 2023, it was not open to Malvern Tyres to simply treat the ostensible resignation as terminating the employment without clarifying or confirming with Li, after a reasonable time, that he genuinely intended to resign,” the FWC added.
“Further, it should have been understood by Malvern Tyres, once it received the medical certificate stating Li was unavailable to work until 14 December 2023, that Li did not intend to resign.”
Given the heated exchange and subsequent actions, the FWC said that Li's departure cannot be reasonably construed as a voluntary resignation. Therefore, it qualifies as a termination of employment initiated by the employer.
The FWC then ordered that further proceedings be scheduled to resolve the dispute over Li's dismissal.
