Dismissal vs Resignation  

The line between circumstances constituting a dismissal (by the employer), or an employee’s resignation can be hazy at times. A strained employment relationship, or the heat of the moment can cause parties to do or say things which become the focal point of a dispute as to whether the employee was dismissed or resigned on their own accord.  

A short review of recent decisions of the Fair Work Commission (the “Commission”) demonstrates the potential complexity of these situations, and some key takeaways we can learn from them.  

 A Scottish Goodbye  

Facts: An employee and her supervisor engaged in an argument, following which the employee was said to have been heard to say, “I have had enough, and I quit”. The employee contended this statement was misheard due to her thick Scottish accent.  

Finding: Dismissal. The Commission held it was likely for the employee to be misheard (noting the supervisor struggled to understand her at the hearing). Even if the statement was not misheard, the Commission concluded it “would have been made in the heat of the moment and not intended”. This was supported by the employee’s emotional state following the argument, which led her to seek medical assistance. 

The case can be read here.

Can’t Handle The Heat…  

Facts: An employee arrived late to a shift and began behaving in an angered manner when questioned about the reasons why. The manager told him to “just leave” and that “he was unwanted here if he is acting like this”. The employee dropped his things and walked out. Later, on a phone call with the employer, the employee’s brother said he “did not want to return to work” and nothing further was heard.  

Finding: Resignation. The Commission was not convinced that the employment was terminated at the initiative of the employer. While the manager told him to leave in a heated exchange, it was the conduct on the phone later which indicated the employer wanted the employee to return, but this was not reciprocated.  

The case can be read here.

…Then Get Out Of The Kitchen  

Facts: A chef walked out of her shift after the co-owner scolded her for how she spoke to another staff member. The chef called her supervisor the next day and was told to not come back to work that night and was subsequently removed from Facebook group chats.  

Finding: Dismissal. The Commission held that an employee is dismissed if the employer’s conduct would be viewed as likely to end the employment relationship. The employee made contact and was willing to perform her obligations with the next day’s phone call. The employer acted in a way which could reasonably be viewed as terminating the chef’s employment. 

The case can be read here. 

Forcing The Issue 

Facts: An aged care worker arrived at work to find she was under investigation for misconduct. The employee was told to leave and return later that afternoon for a disciplinary meeting. The employee was a migrant who spoke English as a second language, and thought her employment was going to be terminated for stealing after a client offered her a beer. In a panic, the employee returned to the workplace with a handwritten notice of resignation, which the manager asked her to “amend” by scribbling over the part which included her required four weeks’ notice, to make it effective immediately.  

Finding: Dismissal. The Commission found the employee was emotionally distressed, irrational, and confused. These were extraordinary circumstances where the employer’s conduct essentially “forced” the employee to resign, as termination of employment at the employer’s initiative was the probable result. 

The case can be read here.

Only Yourself to Blame 

Facts: An employee was the subject of a misconduct investigation. Prior to this, the employee raised complaints which she felt like had not been properly addressed, causing her to “lack trust” in the employer’s processes. The employee claimed to have no choice but to resign.  

Finding: Resignation. While the employer could have more appropriately addressed the employee’s concerns regarding her complaints, there was nothing in the Commission’s view, which suggested the employer did not take them seriously. The Commission did not see this minor procedural issue as leaving the employee with no other reasonable choice but to resign.  

 The case can be read here. 

Key Learnings

While these situations can often be complex to unpack in the moment, particularly when emotions are running high, there are several key learnings that can assist. 

• The risks of confusion and dispute around who made the decision can be managed by adhering to formal processes when it comes to performance / behaviour management and the possible dismissal of an employee’s employment.  
• Relying on conduct which was in “the heat of the moment” will usually not hold up when examined by the Commission.  
• To resign, the employee’s actions must be reasonably understood as conveying a real intention to resign.  
• To be dismissed, the employment must be terminated at the initiative of the employer. 
• Conduct surrounding the moment of termination is often just as important as the moment of termination itself.