No unfair dismissal in case of employee who ceased work ahead of resignation date

Dispute hinged on a medical leave request and a $628.30 claw-back

No unfair dismissal in case of employee who ceased work ahead of resignation date

The Fair Work Commission (FWC) recently dealt with a case involving an employee who alleged she was unfairly dismissed despite having resigned.

The dispute stemmed from the employee’s failure to attend work for the final fortnight before the previously agreed resignation date. Citing a medical condition, the employee was not available to work that final two weeks. The employer clawed back those two weeks of pay from her final compensation, a sum of $628.30, on the grounds that she did not make an effort to discuss taking on lighter duties.

The employee sought an unfair dismissal judgment over the disputed fortnight. However, the employer contended that the case does not constitute dismissal, as the employee was the one who voluntarily tendered her resignation.

Background of the case

The employee started working as a receptionist for the legal firm, operating in Sydney, in 2017, according to the decision by the Fair Work Commission. On the date her employment ceased, she was employed as an office manager.

On 13 July 2022, the worker gave notice of her resignation through an email to the company. “Unfortunately, stress and fatigue has got the better of me, and I have some health issues that require my attention,” she wrote.

“I understand I am to provide 8 weeks’ notice as per my contract, however, given my circumstances, I am kindly requesting that my final day be Friday, 12 August 2022,” she added.

Based on the succeeding email exchanges between the worker and the company, they both agreed that the worker’s last day with the firm would be on 31 August 2022.

However, the employee did not return to work following Friday, 12 August, instead forwarding a medical certificates from a family physician stating that she was suffering from a medical illness.

When the company sent to the worker her final payment, it was re-calculated to reflect a final employment day of 12 August, rather than the originally agreed 31 August. The firm stated that it clawed back the final fortnight of pay because the employee to did not respond to requests to find lighter duties.

The employee argued that this clawback in pay amounted to termination on 12 August and sought a finding of unfair dismissal by the Fair Work Commission, with an aim to ultimately receive the disputed $628.30.

In its defence, the employer argued that the resignation remained in effect.

The Commission’s findings

The FWC found there was no unfair dismissal and said that the worker voluntarily resigned from her post without being forced by conduct or a course of conduct of the employer.

The Commission was satisfied that despite the company’s requests that the worker reconsider her resignation, the latter still reaffirmed her decision as she saw it being in her best interests.

Moreover, while the worker argued that the company clawed back salary payments made from 12 August, the FWC said that “the conduct, notwithstanding its unilateral nature, did not re-characterise the resignation as a dismissal or constitute a fresh act of dismissal.”

The ruling concluded with a blunt comment on the case:

“It is regrettable that the parties were not able to resolve this matter in advance of this jurisdictional hearing…. A continuing dispute over two weeks’ pay or payment for a fortnight of personal leave does not appear to be a productive investment of time or money.”

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