The law which has been developed principally by the Fair Work Commission as to what conduct by an employee will constitue an effective resignation capable of ending the employment relationship in contrast to conduct which the employer would be unwise to regard as a resignation is as follows.
“ The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the Act, which relevantly provides as follows: “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. …” Consideration  In order for an employee to have been unfairly dismissed under the Act, it must first be established that the person has been dismissed within the meaning of s 386(1) of the Act.61 The term “dismissed” is defined in s 12 of the Act by reference to s 386.  I discern from Ms Kealey’s arguments that she contends that she was dismissed within the meaning of the first limb of s 386(1); that is, that her resignation was not legally effective because it was expressed in the heat of the moment.  The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (Bupa)62 considered the authorities in relation to a resignation in the context of s 386(1)(a) and concluded as follows:  FWC 2778 10 “(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.” (emphasis added)  Generally, where an employee uses unambiguous words to communicate their resignation, the employer is entitled to treat this as an effective resignation.63 However, where there are “special circumstances”64 such as words of resignation being spoken or actions expressed “in temper or in the heat of the moment or under extreme pressure,” it may be unreasonable for an employer to assume a resignation and accept it. If circumstances arise which put the employer on notice that a further enquiry is desirable to see whether the resignation was “really intended and can properly be assumed,” then such inquiries should be made.65  An objective view of the actions of the parties is required. If it can be said that the employee could not reasonably be considered to have conveyed a real intention to resign, then there may be a termination on the employer’s initiative if the employer treats the resignation as effective. The conclusion must be that objectively, no such intention was evident, not simply that it is fair to allow the employee an opportunity to rethink the matter.66  In this case it is not in dispute, and I find that (a) Ms Kealey said words to the effect of “I quit” during the meeting on 7 June 2023 on at least one occasion, (b) Ms Kealey returned a set of keys to Ms Wellington and Mrs Daniels-King, and (c) Ms Kealey thereafter left the workplace in an upset state saying words to the effect that she would not be back. I am satisfied that this amounts to an “ostensible communication of resignation” as that term is used by the Full Bench in Bupa.  Further, I am satisfied that the words of resignation were spoken, and Ms Kealey’s actions expressed, at a time during which Ms Kealey was in a heightened emotional state. I accept Ms Kealey’s evidence that she had heart palpitations during this meeting, developed a headache and felt “distraught.” However, the mere fact that Ms Kealey resigned in circumstances of heightened tension or strong emotions will not turn a rash or imprudent decision into a dismissal at the initiative of the employer. The objective test referred to by the Full Bench in Bupa must be applied.
Kealey v Diamond Valley Community Support Inc  FWC 2778 delivered 22 November 2023 per Millhouse DP