Unfair dismissal cases; resignation and dismissal

The relationship between perceptions, assumptions, resignation and dismissal is at the heart of this portion of a recent unfair dismissal decision.

“[69] The Respondent submitted that the Applicant’s employment was not terminated at the initiative of the employer, but rather, that the Applicant’s conduct on 27 and 28 April 2022 constituted a resignation from her employment. The Respondent submitted that the Applicant resigned because she had secured alternative employment.

[70] The Respondent submitted that an employer is entitled to reply upon unambiguous words or statements of resignation. 4 If words of resignation are expressed ‘in the heat of the moment’ or ‘under extreme pressure’ an employer may be found to have a duty to clarify or confirm the resignation with the employee.5 It must be apparent to the employer that the resignation had been given ‘in the heat of the moment.’6 The Respondent specifically referred the decision of Ngo v Link Printing Pty Ltd,7where it was found in the first instance and on appeal that Mr Ngo’s employment had not been terminated at the initiative of the employer, and that, if Mr Ngo’s resignation had been given in the heat of the moment, it was not retracted sufficiently swiftly, such that Mr Ngo was not entitled to withdraw his resignation the next day.

[71] The Respondent noted that at the time of the Applicant’s resignation, the Applicant and Mr Cherniakov were communicating via SMS. Therefore, Mr Cherniakov could not ascertain visual or aural cues that might have revealed the Applicant’s emotional state.

[72] The Respondent submitted that Mr Cherniakov had no reason to suspect that the Applicant was distressed on the evening of 27 April 2022. While the Respondent discerned that the Applicant’s texts were rude, demanding, impatient and unreasonable, she was not obviously distressed. The Respondent asserted that Mr Cherniakov had reassured the Applicant that her job was safe and undertook to look into her query about shifts the following day. The Respondent submitted that there was no reason for the Applicant to remain concerned about her days of work after receipt of that message. The Respondent suggested that it was apparent from both the terms and the immediacy of Mr Cherniakov’s response that he was seeking to preserve the Applicant’s employment to avoid any risk of the Applicant resigning in order to take up the alternative employment she had apparently secured.

[73] The Respondent submitted that despite Mr Cherniakov’s reasonable and reassuring SMS, the Applicant sent a reply that made clear that she was not going to come to work for her scheduled shift the next day. The Respondent asserted that the Applicant’s response, coupled with her initial message, should objectively be regarded as an unequivocal resignation.

[74] The Respondent noted that Mr Cherniakov immediately sought to confirm that the Applicant meant to resign, and to inform her that if she did mean to resign, she was required to give 4 weeks’ notice. The Respondent submitted that it was imperative that he discovered immediately whether the Applicant was giving four weeks’ notice of resignation, given the critical function of the Applicant’s role. The Respondent submitted that Mr Cherniakov did not receive a response, and the Applicant’s last text was sent at 7:49pm. The Respondent submitted it had no option but to seek a replacement for the Applicant on an urgent basis.

[75] The Respondent submitted that Mr Cherniakov did not hear from the Applicant again until 11:17am on 28 April 2022, well after the commencement of her scheduled shift, when the Applicant sent a text claiming that she had not resigned. By that time, Mr Cherniakov had, out of necessity, acted on the Applicant’s resignation and secured a new employee to replace her.

[76] The Respondent in closing oral submissions emphasised that the test for the purposes of section 386(1) is an objective one and restated its argument put in written submissions. The Respondent submits that the combination of factors viewed objectively amounts to a resignation.

[77] The Respondent submits that if it was true that the Applicant engaged with ‘Sue’ at 6am on the morning of 28 April, it would be expected she would have seen the text message from the previous evening from Mr Cherniakov. The Respondent submits that it is open to find that Applicant ignored the message of Mr Cherniakov. The Respondent submits Mr Cherniakov proceeded to find another person for the following morning.

[78] The Respondent submits there was a resignation, and that the email at 11.17am the next day was too late to retract the resignation.

[79] The Applicant strongly refuted the Respondent’s allegation that she resigned. Rather, she submits that she told Mr Cherniakov that she was unable to fill the extra shift on 28 July 2022 because it was not her shift and she needed to attend to personal matters. The Applicant noted that she told Mr Cherniakov via SMS that that she did not resign.

[80] The Applicant believed that Mr Cherniakov had wanted to dismiss her for some time, referring to the disputed text message which she believes was accidentally sent to her by Mr Cherniakov.

[81] To further support her allegation that Mr Cherniakov wanted to dismiss her, the Applicant referred to a previous conversation she had had with the Respondent’s former office manager, ‘Kyle’. The Applicant submitted that ‘Kyle’ told her he had worked for Mr Cherniakov for some time, during which Mr Cherniakov had purchased and sold several businesses. ‘Kyle’ allegedly told the Applicant that the first thing Mr Cherniakov does after a purchase is to determine who has worked there the longest. ‘Kyle’ allegedly said that older people and people who are paid well are always the first to go. ‘Kyle’ allegedly said it’s always about profitability, and young people are often paid substantially less. The Applicant did not call ‘Kyle’ as a witness.

[82] In closing oral submissions, the Applicant said that she did not resign, and having one day off because she was upset about the advertisement is not resigning, and the fact that Mr Cherniakov had her sign-in codes disabled and demanded the return of the office key and IT equipment made it impossible to return. The Applicant submitted that Mr Cherniakov did not go to much trouble to find out if she had resigned.

[83] I am not satisfied that the evidence establishes that the Applicant resigned from her employment. The evidence supports the conclusion that Mr Cherniakov was aware for some time that the Applicant had wanted to have an ongoing permanent part time role of four days per week as opposed to the existing arrangement of three days with additional days when available.

[84] The text message sent by the Applicant on the evening of 27 April where she advised she has another part time job and could not cover for ‘Lana’ anymore, when viewed in the full context of the evidence, including the Applicant having had her hours previously reduced from full time to part time, and her stated desire for a permanent four days, was sufficiently clear in attempting to communicate to her employer that she no longer wanted to cover the additional shifts when required, if the Respondent was not prepared to commit to additional minimum permanent part time hours on an ongoing basis. The Applicant was a permanent part time employee, not a casual.

[85] It was not reasonably open on the evidence before the Commission to accept that the Applicant was foreshadowing that she intended to resign from her employment if the Respondent did not agree to give her four days a week on a permanent basis.

[86] There is no dispute in the evidence that the Thursday shift on 28 July was not part of the Applicant’s ongoing permanent part time minimum hours, which it was accepted were Monday, Tuesday and Wednesday at the relevant time. The Thursday shift was someone else’s shift that she had been asked to cover on a temporary basis a few weeks earlier.

[87] The Applicant’s position is fortified by her confirmation on the morning of 28 April that the text messages from the previous evening were not a resignation. The Applicant’s evidence that Mr Cherniakov had told her previously to let him know if she could not fill one of ‘Lana’s’ shifts was not contested.

[88] I reject the Respondent’s argument that it is open to find the Applicant resigned because she had found other employment. The evidence disclosed that while the Applicant was of the view at the relevant time that she would be employed by IGA, it was not her intention at the relevant time to resign based on the potential new IGA role. The evidence supports the conclusion that the Applicant intended for the IGA role to supplement her existing employment with the Respondent, because she had been unable to secure additional permanent ongoing hours with the Respondent and needed to earn more income.

[89] I am also not persuaded by the Respondent’s argument that the Commission should not find that the Applicant was distressed by the advertisement because she knew her role was secure, and because she knew the advertisement was to replace ‘Lana’s’ role. I am inclined to accept the Applicant’s evidence that she was distressed because she believed, it would appear from the evidence incorrectly, that the advertisement was directed to eventually replacing her with someone else.

[90] This is not a case where I am inclined to prefer one witnesses evidence over the others in relation to credit. I found both the Applicant and Mr Cherniakov to be credible witnesses. I am inclined to accept Mr Cherniakov’s explanation concerning the Respondent seeking to find another employee to fulfil the functions Mr Cherniakov described in his evidence as being required by the Respondent, and that the Respondent was not intending to replace the Applicant.

[91] Unfortunately, because a decision had been taken to reduce the Applicant’s hours at an earlier point in time from full-time to part-time, and further that the Applicant did not understand why the Respondent had not agreed to increase her hours when other employees had left the organisation, the Applicant had formed a genuine subjective belief, incorrect as it was in my view, that the Respondent was not well disposed toward her, or toward continuing to employ her in the longer term. I do not accept that the Applicant’s view was accurate, but I do accept she believed it to be true.

[92] There was some cross examination of the Applicant about her not responding to Mr Cherniakov’s text message asking her if she was resigning on the evening of 27 April. The Applicant said she did not see the message until the following day. Whilst it is possible that the Applicant ignored the message until the following day as was submitted, I have not been persuaded that it is probable. I found the Applicant generally to be attempting to answer questions put to her truthfully and as best she could. I am more inclined to believe the Applicant went to bed as she said she did and did not see the message until the next day. Even if I am wrong about that, it does not alter the outcome as even if the Applicant did decide to not respond to the text of Mr Cherniakov querying whether the Applicant was resigning, the delay in the Applicant responses until the following day was not a proper basis for the Respondent to conclude that because it had not received a timely response the Applicant had in fact resigned.

[93] I agree with the Applicant’s closing submission that having one day off because she was upset about the advertisement is not resigning.

[94] For the reasons set out above, the jurisdictional objection that the termination was not at the initiative of the Respondent is dismissed, and I am satisfied that the Applicant was dismissed by the Respondent. The Applicant was advised by the Respondent that she had resigned and her sign in codes were disabled and she was required to return the office key and IT equipment. Mr Cherniakov confirmed in his evidence that he decided not to respond to the final text message from the Applicant sent on 2 May where she was requesting advice as to whether she was still rostered to work the following day.”

Byles v Retailcorp Pty Ltd (2022) FWC 2537 delivered 20 October 2022 per Simpson C