By Dr Laura Sowden, Partner Anna Ly, Senior Associate and Astrid Lalor, Lawyer

*Mills Oakley acted for the Respondent instructing Yvonne Truong of Counsel.

Overview

In a recent Fair Work Commission (FWC) decision, an Employee made an application to the FWC, and her former Employer (Respondent) objected to the Employee’s ability to bring that application. The FWC decided the Employee resigned and the Respondent did not cause the resignation. The Employee’s application was dismissed.

The FWC considered the Respondent’s jurisdictional objection to the Employee’s General Protections Application involving dismissal under section 365 of the Fair Work Act 2009 (Cth) (FW Act) (Application).

The Employee alleged that her dismissal by the Respondent contravened the General Protections provisions of the FW Act.

The Respondent argued the former Employee could not bring the Application because she was not terminated. Rather, she had resigned.

The FWC decided:

1. the Employee resigned of her own accord on 16-19 August and not because of any conduct engaged in by the Respondent to bring the employment to an end;
2. the Employee did not resign “in the heat of the moment” at any stage;
3. thus, the Employee was not terminated by the Respondent under section 386(1)(b) of the FW Act; and
4. the Application she made was

Summary of Allegations and Events

From November 2023, there was a change in the composition of the Respondent’s Board which the Employee alleged made work difficult with other colleagues. The Employee alleged mistreatment, ostracism, victimisation, and bullying behaviour from the Respondent’s chairperson.

The Employee made a formal complaint about some of the above which was then investigated.

The Employee was contacted by the Sydney Morning Herald to comment on article about to be published relating to the Respondent organisation, which included information regarding the Employee. This caused the Employee a lot of stress, as she was worried the article would damage her reputation.

Between 14 to 16 August 2024 there were emails, texts and calls between the Employee and staff of the Respondent company and an external HR Manager saying she wished to resign.

On 16 August 2024, the SMH article was published online. On the same day the Employee followed up the external HR Manager asking for a separation certificate.

On 19 August 2024, the Employee again said she wanted to move on from the Respondent. The Employee requested her final pay, payment for her entitlements, and a separation certificate.

Issues

Was the Employee ‘dismissed’ under section 386 of the FW Act?

The Respondent argued the Employee was not dismissed. Rather, the Employee resigned.

The Employee argued her resignations were made “in the heat of the moment” and the circumstances left her no choice but to resign.

The FWC disagreed with the Employee.

The Detail – Legal Principles

The FWC considered circumstances in section 386 of the FW Act in which employees taken to be dismissed, and the legal principles discussed in the case of Bupa Aged Care Australia Pty Ltd v. Tavassoli.

Heat of the moment resignations (four instances) – FWC says NO

The FWC held it could not reasonably be argued that the Employee was dismissed following the 14 to 16 August 2024 resignation instances because it was in the “heat of the moment”.

“The Employee had been given the option of taking paid leave to consider her position. Instead, she followed up on her messages on 16 August with further messages to the Respondent CEO and an external HR investigator/advisor on 19 August 2024 indicating that she wanted to resign and ‘move on.’ I do not consider that the events of 16 to 19 August constituted a ‘heat of the moment’ resignation in the terms discussed in Bupa.” [32]

The FWC acknowledged the Employee’s heightened state of distress at the time she was communicating resignations as it occurred concurrently at time the Sydney Morning Herald article was published.

However, the FWC did not consider the events from 15 to 16 August 2024 constituted a “heat of the moment” resignation. In any case they were not resignations accepted by the Respondent.

The Employee’s text message on 19 August 2024 demonstrated a measured and coherent nature of messaging communicating the resignation, which acknowledged that previous messages were sent in an irrational state, and sought to differentiate from previous state of mind. This was not in the heat of the moment.

Retraction of resignations – FWC says NO

The Deputy President held the purported unilateral withdrawal of resignation via email on 19 August 2024 was ineffective.

The Deputy President did not accept the situation was one where the resignation had been given in heat of the moment and was retracted immediately after the “heat” had died down.

The Employee had only retracted one resignation, the final resignation, and there were no comments on the other resignations or attempt to clarify.

A unilateral withdrawal of a resignation is not possible.¹ An employer is not necessarily obliged to accept a retraction.

Forced resignations –  FWC says NO

The FWC was satisfied on the evidence that the alleged conduct by the Respondent did not establish an intention to end the Employee’s employment.

The Deputy President found the Respondent’s CEO:

• Made enquiries about the Employee’s well-being;
• Contacted the Employee’s uncle to conduct a welfare check on the Employee;
• Did not immediately take action to accept the Employee’s resignations;
• Provided flexibility to the Employee and suggested she take leave and granted additional paid time off.

The above actions were not conduct of an employer seeking to force a resignation.

Conclusion

The FWC:

• dismissed the Application on the basis the Employee’s employment was not terminated by the Respondent;
• “the Employee may have regretted her actions after her resignation was given. But the Employee ultimately resigned of her own accord and not because of any conduct engaged by the Respondent to bring the employment to an end.”

What to take away?

It is important for employers to maintain records, and to remember that sustained resignations will likely be acceptable, and once accepted, it effectively brings the employment to an end.

Employers need to respond appropriately to avoid any findings they have forced a resignation from an employee – something the Respondent did well here.