Stood down after an angry row, he believed he had been sacked

What happened

On 13 September 2016 James Lawson, who worked for Environet Australia Pty Ltd, a business trading as ESP - Environmental & Safety Professionals, was asked by the company's owner to sign a Safe Work Method Statement. This is a safety document setting out how a job will be done safely. Mr Lawson did not sign it, and the operations manager followed up with him.

The two men gave very different accounts of that conversation. Mr Lawson said the manager told him, "you will sign everything that the company tells you to sign", and then said he was "sacked" and should pack up and leave. The manager said he only asked what was wrong with the document, that Mr Lawson swore at him repeatedly, and that he then said he would have to stand Mr Lawson down for a few days.

Either way, Mr Lawson packed his belongings, handed over his office key and left. About an hour later his access to work email had been cut off.

What happened next

Later that week the owner emailed Mr Lawson asking him to come in for a meeting on Monday 19 September. The owner said the meeting was to discuss his return to work. Shortly before it, Mr Lawson emailed to say he would not come, and asked for his separation certificate. The owner replied that he was in the office waiting and would reschedule.

Mr Lawson never returned. On 25 September he emailed again, asking for his separation certificate, a reference and other documents by the next afternoon. Meanwhile the company had paid him his full salary for September on 15 September, and had not paid out his accrued annual leave, which it said it would have done had it dismissed him. Eventually the company concluded he was not coming back and sent the separation certificate.

Mr Lawson applied to the Fair Work Commission, claiming he had been unfairly dismissed. The company said it had never dismissed him.

Why: the legal test

An unfair dismissal claim can only succeed if the worker was dismissed. Under s 386(1) of the Fair Work Act 2009 (Cth), a person is dismissed if the employment was terminated on the employer's initiative, or if the person resigned but was forced to by the employer's conduct (often called a forced resignation or constructive dismissal).

Following earlier Full Bench decisions, the Commission first asked whether anything the employer said was an express termination. If not, it asked whether the employer did something that was either intended to end the employment or had the probable result of ending it. The question is judged objectively. As Commissioner Saunders put it, it "is not to be determined by reference to the subjective beliefs" of the worker or the employer.

What the Commission decided

Commissioner Saunders preferred the manager's account. It fitted the owner's repeated attempts to get Mr Lawson back to work, the reluctance to send a separation certificate, and the full month's pay. Mr Lawson also changed his evidence under questioning, eventually agreeing the manager had asked what was wrong with the document. The Commissioner did not accept that Mr Lawson could not recall swearing, and found the manager had told him he was stood down, not sacked.

The Commissioner accepted that being told to take his belongings, return his key and lose email access gave "some support" to Mr Lawson's version. But the company had explained those steps: earlier disputes about Mr Lawson's belongings going missing and his computer being "hacked", and a wish to protect sensitive files while he was away. The manager had said "I'm done", not "you're done".

So there was no dismissal. In fact, by refusing to meet or return while demanding a separation certificate, Mr Lawson showed he no longer intended to be bound by his contract. The job ended on his initiative, not the employer's. Mr Lawson did not argue that he had been forced to resign, and the Commissioner said that argument would have failed anyway, because the company plainly wanted him back at work. The company's argument that he had abandoned his job under an award clause was rejected, because a Full Bench had held that clause has no effect. The application was dismissed.

What this means for you

The Commissioner accepted that Mr Lawson "truly believes he was dismissed". That was not enough. If you leave work after a blow-up thinking you have been sacked, but your employer says you were stood down or asks you to come back, it is worth taking up that invitation, or at least asking in writing whether your employment has ended. Staying away and asking for your separation certificate can mean you end the job yourself, and leave you with no claim.

For employers, the case shows the value of making it clear, in writing, that a stand down is a stand down, and of following up quickly. If you are unsure whether you have been dismissed, get advice early: an unfair dismissal application must be lodged within 21 days of the dismissal taking effect.