Guide From an Employment Law Firm

What Happened

In Mr A v The Respondent [2016] FWC 8631, the employee worked for the employer for approximately 1 year. However, on 14 July 2016, the employee suddenly stated that he would be leaving. The employee then left the workplace and did not provide any further explanation as to why, when or if he would return. Upon departing, the employee took various of his belongings with him. Consequently, the employer concluded that the employee resigned.

The Employer’s Conclusion

The employer had many reasons to justify its assumption that the employee resigned. Over the preceding 2 months, the employee’s attitude and work performance deteriorated. The employer also sought advice from both an employer association and the Fair Work Ombudsman, who both also concluded that the employee resigned of his own volition. All these circumstances and advice, as well as the employee’s abrupt departure without explanation, led the employer to, some would think justifiably, conclude that the employee resigned by abandonment of employment. On 18 July 2016, the employer emailed the employee its conclusion.

The Employee’s Position

In the days following, the employee did not make himself particularly contactable to the employer. He would later lodge an Unfair Dismissal application.

The employee’s position was that he had a panic attack, causing his abrupt departure. The employee also argued that the panic attack was caused by the employer’s treatment of him during his time there. Consequently, the employee argued, the abrupt departure should not be considered a resignation because it was instead a perceived threat by the employee of an immediate threat to his health and safety.

According to the employee, as his abrupt departure was not a resignation, he was then unfairly dismissed by the employer, justifying an award of compensation to the employee.

Did the Employee Resign?

The Fair Work Commission held that, whilst the employee might have actually resigned on 14 July 2016, there was not enough evidence to establish it. Rather, the employer had a legitimate cause for doubt about whether the employee had, in fact, resigned. Further, that the employer had not been able to talk to the employee afterwards created more doubt.The result was that the Fair Work Commission could not be satisfied that the employee had resigned. Therefore, that the employer then took the initiative to make a decision that it would regard the employment as concluded, and confirming that decision in an email to the employee, constituted a termination by the employer, not a resignation by the employee. It came down to the lack of evidence before the Fair Work Commission and the initiative taken by the employer.

Was the Dismissal Unfair?

The Fair Work Commission held that, on the scant evidence before it, there was not a valid reason for the termination. There may have been significant concerns as to the employee’s work performance, but there was still not a valid reason for termination.

Further, the employee’s abrupt departure occurred in convoluted circumstances, but that could still not justify termination. Therefore, the dismissal was ultimately found to be unfair, being harsh, unjust and unreasonable. In particular, it was unreasonable to terminate the employee because the conclusions reached by the employer as to whether or not the employee had resigned were based on inferences, not facts.

Lessons to be Learnt for Employers

Employers may do their best to obtain advice from employment law centres or the Fair Work Ombudsman. However, the advice received from such sources is heavily dependent upon the questions asked in a short amount of time. Therefore, the advice can be limited. It is better to seek more detailed legal advice from a top employment law firms under a more long-term client-lawyer relationship.

Lessons to be Learnt for Employees

Employees may ultimately succeed in an Unfair Dismissal claim, such as in this case. However, this case was a rare one with little evidence either way. Further, the employee was only awarded 2 weeks of salary in compensation. Therefore, it is advisable that employees communicate clearly their intentions to their employer so that there is no room for uncertainty. In this case, the employee would not have had to endure the stress or costs of legal proceedings had he clearly communicated in the first place to his employer that he did not wish to resign.

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