Dismissal or resignation? Fair work law

It is often a fine line between a resignation and a dismissal as is evident in the following extract from a Fair Work Commission case.

“Was Mr Harman dismissed?

The question of when a person has been dismissed is governed by s 386 of the Fair Work Act 2009 (Cth) (Act):

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

A resignation does not need to be in writing, nor does it need to be formal or use the word “resign”.

On the findings of fact I have made above, it is not open to find that Mr Harman resigned from his employment with the Respondent. It was Mr Muddle who suggested that Mr Harman leave work for the day because he was not in the right “head space”. Mr Harman did not say that he was “out of here”, “leaving this place of employment”, “finished with this place”, “quit”, “would not be back”, or anything of the sort. He told Mr Muddle that he was feeling stressed and was going to see his doctor. That is exactly what Mr Harman did. The fact that he saw Dr Trebble on the following day, 26 August 2020, or even two days later (assuming, contrary to my earlier finding, that the date of the medical appointment was 28 August 2020, rather than 26 August 2020) and obtained a medical certificate, which he then provided to the Respondent on Monday, 31 August 2020, supports Mr Harman’s case that he did not resign. Further, the fact that Mr Harman left a number of his personal possessions, including a CD, drink bottle, coffee cup, cutlery, and bowl at work on 25 August 2020 is consistent with Mr Harman’s case that he did not resign on 25 August 2020.

Nor did Mr Harman abandon his employment with the Respondent. He left work on 25 August 2020 at the suggestion of Mr Muddle. He told Mr Muddle that he was stressed, and was going to see his doctor. Mr Harman obtained a medical certificate in respect of the period from 26 August 2020 to 31 August 2020 inclusive. He provided that certificate to the Respondent on 31 August 2020. In the period from Wednesday, 26 August 2020 to Friday, 28 August 2020, Mr Harman should have made contact with the Respondent and provided the Respondent with a copy of his medical certificate. The stress he was feeling during that time likely contributed to the fact that he did not make contact with the Respondent in those three days. In all the circumstances, it is apparent that Mr Harman did not abandon his employment with the Respondent. His conduct did not evince an unwillingness or inability to substantially perform his obligations under his (unwritten) employment contract with the Respondent.

Following the hearing, Mr Hammond, on behalf of the Respondent, did not seek leave to re-open the Respondent’s evidentiary case; he simply sent an email to my Associate on 26 February 2021 (containing various assertions) and attached a separation certificate to his email. The separation certificate is dated 24 August 2020 and states the reason for separation as “misconduct as an employee … punched a hole in the wall and threatened other employees”. Two things may be said about the separation certificate: first, it contends that the reason for separation was misconduct on Mr Harman’s part. There is no suggestion in the separation certificate that Mr Harman ceased work voluntarily or abandoned his employment; secondly, the separation certificate is dated 24 August 2020 and refers to Mr Harman having “punched a hole in the wall”. It is clear from Mr Harman’s evidence and the text message sent to him by Ms Mikellides on 25 August 2020 that Mr Harman punched the wall on 25 August 2020. It follows that the separation certificate could not have been prepared on 24 August 2020. That is consistent with Mr Harman’s evidence, which I accept, that he was not provided with a separation certificate at any time after his dismissal. For these reasons, even if I granted the Respondent leave to re-open its evidentiary case and rely on the separation certificate, I would give the separation certificate very limited weight. It would not cause me to conclude that Mr Harman was not dismissed or that his dismissal took place on 24 August 2020.

I find that Mr Harman’s employment with the Respondent was terminated on the Respondent’s initiative. The termination of the employment relationship took effect on Tuesday, 1 September 2020 when Mr Muddle told Mr Harman that he was no longer an employee of the company, and requested that Mr Harman leave. This termination clearly took place on the Respondent’s initiative.

For the reasons given, Mr Harman was dismissed by the Respondent within the meaning of s 386(1)(a) of the Act.

Harman v Joe Harkin as trustee for the Civil Labour (NSW) Trust  [2021] FWC 1220 delivered- 5 March 2021 per Saunders DP