Resignation or dismissal; you be the judge
An interesting question arose in Brunner v Amalgamated Marketing Pty Ltd T/A Radio Stations 4AK 4WK (2015) FWC 7837 7837 delivered 17 November 2015 per Richards SDP. An employee, fed up with her lot it appears, gave her employer notice of resignation. In an unfair dismissal case, she contended that she was forced to resign and consequently that she had been constructively dismissed. This was rejected by the Commission, with the Commission finding that her “letter of resignation therefore fortifies my earlier findings that Ms Brunner was not forced to resign her employment, as she alleges, because of the conduct of her employer.”
However, the employee also argued that notwithstanding the foregoing, she was ill on the day following the tendering of her resignation and that her employer, without conducting what the Commission regarded as an appropriate enquiry, returned her personal effects to her and sought the return of its property from her. This the Commission found did constitute her dismissal.
“Clearly, this is a juncture at which the parties fell into some confusion as to one another’s motivation. But when all the circumstances are considered, I think there is some substance to Ms Brunner’s apprehension that she had been dismissed during her notice period, when she had been requested to return her tools of trade, including her work shirts, and was not permitted entry to the employer’s premises. To a reasonable person in the street, such circumstances would reasonably imply that the employment relationship had ceased at that time at the initiative of the employer.”