Can an employer treat no response as a dismissal?

Can an employee who is asked by an employer to resign treat that as a dismissal? Some light on that issue is to be found in a decision of the Fair Work Commission in Wang v KDK Bathroomware Pty. Ltd.(2018) FWC 27 delivered 10 January 2018 per Gregory C, in which the Commission was required in an unfair dismissal case to determine whether an employer should be regarded as having dismissed an employee to whom it sent a letter which “provided two options to him in regard to his resignation. Firstly, he could sign and return the draft resignation letter it had prepared. Secondly, it indicated that if no response was received within 3 days it would assume that he had resigned.”

Commisioner Gregory decided that

“The circumstances involved in this matter are clearly unusual and it is strange that the employment relationship appears to have come to an end without the parties communicating directly with each other. However, when all of the circumstances are viewed objectively I am not satisfied that KDK’s actions can be said to have resulted directly or consequentially in the termination of Mr Wang’s employment in the sense that he had no other option but to resign. For example, Mr Wang could simply have responded to the email by indicating that he was not resigning, and by clarifying his intentions in regard to when he would again attend at work. He could also have pursued some other form of action if he was concerned about the treatment he was receiving at work. For example, he could have pursued a workplace bullying application, given that he claims to have been bullied at work. He could also have initiated a dispute in regard to the actions of his employer. I am not suggesting that any of these options are necessarily straightforward or obviously apparent. However, they do emphasise that Mr Wang had other options in the context of the circumstances he found himself in.

It is also noted that the warning letter was also forwarded to him with the email on 6 July with a request that he sign the letter as an acknowledgement of having received it. While this might well have added to the pressure Mr Wang felt he was under, the fact he was presented with the option of signing and returning the letter in order for it to be retained by KDK also suggests it was open to the option of him returning to work.

I have already indicated that Mr Wang was obviously unhappy at work to the extent that he was uncertain about whether he could return after being off work for a period of time. However, I am also satisfied that there were various other options available to him at the time and, therefore, he cannot be said to be a person who was forced to resign because of the conduct or a course of conduct engaged in by his employer. It follows from this conclusion that Mr Wang is not a person who has been “dismissed” in accordance with the provisions contained in either ss.385 or 386 of the Act. His application must therefore be dismissed.”

It will be interesting to see whether there is an appeal against the decision.