Dismissal or resignation; you be the judge

Here is a passage from one of the very rare cases in which an employee has succeeded in demonstrating in an unfair dismissal case that he was dismissed because there was no voluntary resignation by him in the context of reasonably passive and unequivocal conduct by the employer.


[36] The question of when a person has been dismissed is governed by s 386 of the 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.”

[37] A dismissal takes effect when the employment relationship has ended. 7 The termination of the employment relationship is a different concept from the termination of an employment contract.8

[38] The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment. 9

[39] The unfair dismissal regime in Part 3–2 of the Act applies to “national system employees” and “national system employers”. 10 National system employees are employees of national system employers, being employers which bear particular characteristics such as to make them amenable to particular heads of legislative power of the Commonwealth in s 51 of the Constitution.11 Beyond this, the Act does not seek to establish a statutory definition of what constitutes an employee. National system employees for the purposes of Part 3–2 of the Act are parties to an employment relationship at law.12

[40] Because the question of whether an employment relationship continues to exist is a question of fact, 13 it is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by words or conduct. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by words or conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,14 whether either party has communicated to the other party a decision to terminate the relationship, and the terms of the employment contract.

[41] The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. 15

[42] The expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. 16 There must be action by the employer that either intends to bring the relationship to an end or has that probable result.17

Consideration of dismissal

[43] Having regard to my earlier finding that Mr Harvey did not say that he resigned on 15 February 2021, I find that Mr Harvey did not resign from his employment with VHP. Mr Harvey only said that he “will hand in his notice”. That was a statement as to Mr Harvey’s future intention. But he did not carry through with that intention. Mr Harvey did not hand in his notice. To the contrary, he called in sick on 16 February 2021, attended for work as normal on 17 and 18 February 2021, and on 19 February 2021 he attended for work as normal to commence his shift.

[44] The text messages Mr Harvey sent to Ms Turton on the evening of 18 February 2021 are in a similar category to what he said on 15 February 2021. He stated in his first text message that he would “be handing in resignation letter tomorrow” and 20 minutes later retracted that statement of intent by informing Ms Turton that he had “been told not to quit so I will be into work as per normal”. Mr Harvey then attended for work at the commencement of his shift at 5:30pm on 19 February 2021. In short, Mr Harvey’s communications and conduct would not have led a reasonable person to believe or understand that Mr Harvey had resigned.

[45] There is no question that the employment relationship between Mr Harvey and VHP came to an end on 19 February 2021. But how did it end? Was the termination “on the employer’s initiative” within the meaning of s 386(1)(a) of the Act? In my opinion, it plainly was. Mr Harvey did not voluntarily leave the employment relationship. He wanted the relationship to continue. So much is clear from his conduct from 16 February 2021, including his text message to Ms Turton at 6:58pm on 18 February 2021 where he stated that he would “be into work as per normal”, and his attendance at work at the commencement of his shift on 19 February 2021. The actions of VHP were the principal contributing factor which resulted in the termination of Mr Harvey’s employment. Those actions were the “notice of resignation” letter sent to Mr Harvey on 19 February 2021, coupled with Ms Turton’s conduct in asking Mr Harvey to return his keys to the premises and leave. Such action on the part of VHP either intended to bring the employment relationship to an end or had that probable result.

[46] For the reasons given, I find that on 19 February 2021 Mr Harvey was dismissed within the meaning of s 386(1)(a) of the Act.”

Extract from  Harvey v Valentine Hydrotherapy Pools Inc (2021) FWC 3373 delivered 10 June 2021 per Saunders DP