Fair work case law; dismissal or resignation?

What is the legal distinction under the Fair Work Act between a dismissal and a resignation?

“Was the Applicant dismissed? If so, when?

[17] Section 386(1) of the Act relevantly provides that 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.”

[18] Section 386 of the Act has created two clear grounds on which a claim could potentially proceed. In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli, the Full Bench expanded on the content of the two limbs:

“(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.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”



[21] I have had regard to all the material and evidence provided by each party in these proceedings. I am satisfied that it was the Applicant’s request for a separation certificate that was the catalyst for the termination of her employment. It is immaterial whether that was first proposed by the Applicant or her daughter because it was not contended that the Applicant had not consented to that course at the meeting on 22 September 2021.

[22] While I acknowledge that the request for the separation certificate came because of the Respondent’s communication to the Applicant that she would not receive any further shifts if she remained unvaccinated given the Respondent’s obligation to comply with the vaccination mandate. I do not consider that this amounts to a termination at the initiative of the Respondent. The Respondent was simply communicating the effect of the government mandate to its staff. As of 22 September 2021, the Applicant had three options available to her. She could have stayed stood down without pay for some time to reconsider her stance on vaccination or to see if the mandate was lifted, she could have decided to get the vaccination or she could have resigned. In requesting the separation certificate as she did, she effectively chose the latter option. Consequently, there was no dismissal within the meaning of the Act.

[23] Accordingly, I order that the first jurisdictional objection be upheld and that the Applicant’s application be dismissed.

[24] Given that finding and the making of that order, it is unnecessary for me to consider the second jurisdictional objection.”

Anderson v Wongaburra Aged Care (2022) FWC 69 delivered 17 January 2022 per Lake DP