Unfair dismisal and heat of the moment resignations

This extract from a recent unfair dismisal case determined in the Fair Work Commission sets out the legal principles applicable to the issue of heat of the moment resignations.

“Was the Applicant dismissed in accordance with s.386 of the Act?  [16] Section 396(b) requires a consideration of whether the person is protected from unfair dismissal. To be eligible to make an unfair dismissal claim, the Applicant must establish that they were dismissed.   [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] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.3 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.4  [2024] FWC 222  4 [19] While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.5 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.6  [20] All the circumstances – including the conduct of both the employer and employee – must be examined.7 In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”8  [21] Where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise.9 In special circumstances an employer may be required to allow a reasonable period of time to pass. The employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.10  [22] There is contention surrounding the Applicant’s date of termination or resignation arising from the incident on 8 June 2023. The incidents surrounding Mr Nobes’ conduct appeared to be a ‘heat of the moment’ reaction. The Applicant did state ‘he was done’ in the moment, and his comments regarding the incident were unprofessional. However, observing the subsequent conduct of the Applicant indicates that he was evaluating whether to remain employed with the Respondent, rather than an intention to resign and end the employment relationship.   [23] The Applicant’s subsequent conduct of changing the rosters also was indicative that he was still employed with the Respondent after the incident even though it may have not been authorised by the Respondent.  [24] A dismissal takes effect when the employment relationship has ended by the employer, rather than the termination of the employment contract.11 The letter sent to the Applicant on 13 June 2023 aligned more with a termination letter based on his conduct rather than accepting Mr Nobes’s resignation.   [25] Mr Woodall listed the reasons for dismissal regarding problems arising from his performance at work. Mr Woodall had decided that Mr Nobes’ employment could not continue and requested the return of work property. It was at this point it was clear that the employment relationship had come to an end at the initiative of the employer.  [26] The Applicant was dismissed at the initiative of the employer on 13 June 2023 after issuing the letter noting issues with the Applicant’s conduct.”


Nobes v Elite Security Personnel Pty. Ltd.- [2024] FWC 222 delivered 25 January 2024 per Lake DP