Fair Work cases; resignation or dismissal?

The legal issue whether an employee has been dismissed for the purposes of the unfair dismissal jurisdiction of the Fair Work Commission is determined or resolved in an objective, not a subjective manner.

Extract from

“Whether a person has been dismissed is to be considered objectively consistent with the statutory definition of dismissal in s 386 of the FW Act. That an employer does not consider it dismissed a person does not make it so any more than an employee subjectively believing they had been dismissed.

[74] Section 386(1) provides:

“386 Meaning of dismissed

(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.”

[75] Ms Murdoch submits that the email she received at 1.17pm on 3 November 2021 constituted a termination of employment because the employer requested the return of a key and a work vest.

[76] Considering the evidence as a whole and on balance, I do not agree. Whilst it was perfectly understandable that Ms Murdoch, not having worked since 9 August 2021 and given the ambiguous wording of the email, took the requests made that way, the employment relationship was not terminated by that email because:

  • the primary purpose and subject matter of the email was to inform Ms Murdoch that her DVD had been found by Ms Avery; and
  • there were operational reasons for the business seeking the return of the key and the vest. The key was not considered necessary if Ms Murdoch was not to be given future transfer work, and the vest (which was company property) was to be dry-cleaned together with the jacket which was already on the business premises.

[77] Whilst AFF can reasonably be criticised for not having communicated this context to Ms Murdoch, I accept Ms Avery’s evidence that it was an email written in haste and for the primary purpose of advising that the DVD had been located.

[78] That Ms Avery, Mr Altschwager and Ms I’Anson were shocked to learn later that day that Ms Murdoch had taken the email as a termination is consistent with the conclusion that the 1.17pm email was not a dismissal.

[79] However, that was not the end of events on 3 November 2021. Ms Avery’s evidence is clear that upon she and Mr Altschwager being shown the facebook post at about 7.07pm that evening, a decision was almost immediately made by the two owners that Ms Murdoch had, in their opinion, conducted herself unprofessionally causing potential harm to the reputation of AFF, and that Ms Murdoch would no longer be ‘on the books’ or offered further shifts or considered for further shifts.

[80] That AFF decided not to communicate this decision to Ms Murdoch does not detract from the fact that this was a decision which terminated the employment relationship. The fact that no offers of further shifts were made from that time onwards is also clear objective evidence that the employment relationship had ceased. It had ceased at the initiative of the employer. So too is the fact that AFF took no steps to dissuade Ms Murdoch from the belief (however erroneous) that she had been dismissed earlier in the day. It matters not that Ms Murdoch sought to ascertain her rights the next day, and was transparent in communicating her view to the employer by email at 12.09pm on 4 November 2021. Nor does it matter whether AFF were advised to not further communicate with her (I make no finding in that regard). AFF was the employer; they had responsibility for the continuation or termination of employment relationships with their staff.

[81] I conclude that Ms Murdoch was dismissed by AFF within the meaning of the FW Act on the evening of 3 November 2021, but not earlier.”

Murdoch v Uambi 775 Pty Ltd trading as Altschwager Family Funerals (2022) FWC 36 delivered 18 January 2022 per Anderson DP