Constructive dismissal issues

When an employee tenders a resignation of employment in the heat of the moment, or indeed in any circumstances where it might not be objectively clear that the resignation is voluntary and freely provided, an employer will be at risk of it constituting a dismissal without taking care to determine whether it is voluntary and intended to be an effective  resignation.

“[19] If Mr Singh or Mr Jain genuinely believed that Mr Hakim had left on his own accord or

was waiting for the future allocation of shifts, they had a duty to clarify or confirm Mr Hakim’s

intentions after a reasonable time, particularly after having received the text messages seeking

clarification that his employment had been terminated by Mr Singh. In Bupa Aged Care

Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli2

, a Full Bench of this

Commission summarised the position under the Act in relation to resignation that may amount

to a termination at the initiative of the employer and observed, in relation to section 386(1)(a),

that:

“(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where,

although the employee has given an ostensible communication of a resignation, the

resignation is not legally effective because it was expressed in the “heat of the moment”

or when the employee was in a state of emotional stress or mental confusion such that

the employee could not reasonably be understood to be conveying a real intention to

resign. Although “jostling” by the employer may contribute to the resignation being

legally ineffective, employer conduct is not a necessary element. In this situation if the

employer simply treats the ostensible resignation as terminating the employment rather

than clarifying or confirming with the employee after a reasonable time that the

employee genuinely intended to resign, this may be characterised as a termination of the

employment at the initiative of the employer.”

[20] Nanak Doors took no steps to clarify or confirm the position with Mr Hakim as to

whether he intended to return to work. The failure of the business to take these steps would, in

circumstances of doubt about whether Mr Hakim had resigned, be sufficient to characterise the

exchange on 3 April 2023 as a termination of the employment relationship at the initiative of

the employer.

[21] However, there was no such doubt. Neither Mr Singh nor Mr Jain thought that Mr

Hakim had resigned. Mr Singh knew that he had dismissed Mr Hakim. He may have failed to

tell Mr Jain the truth of what occurred, although that would not change the fact of dismissal.

And in any event, I doubt this is what happened. Mr Jain organised Mr Hakim’s final pay on

3 April 2023 after quickly making a phone call. He must have done so knowing that the

employment had come to an end.

Conclusion

[22] I find that Mr Hakim was dismissed by Mr Singh in the phone call on 3 April 2023. The

dismissal likely occurred in the heat of the moment while Mr Singh was angry. However, Mr

Singh did not subsequently resile from, or seek to correct, his decision by asking Mr Hakim to

return to work. Mr Hakim did not resign in the heat of the moment, and he did not agree to

simply stand down pending the offer of future shifts once a new company vehicle had arrived.

Mr Hakim was dismissed by the clear words of Mr Singh and his dismissal took effect

immediately.

[2023] FWC 1524

5

[23] Mr Hakim’s employment was terminated at the initiative of Nanak Doors. I am satisfied

that Mr Hakim was dismissed for the purposes of section 386(1).

[24] The jurisdictional objection is dismissed.”

 

Hakim v Nanak Doors And Bathroomware [2023] FWC 1524 delivered 26 June 2023 per McKinnon C