It is not uncommon for parties involved in an unfair dismissal proceedings are in dispute about whether the employee resigned or not. Here is an analysis of the issue in such a case.
“Has the Applicant been dismissed?
[45] Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[46] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[47] The Applicant does not contend that he was forced to resign but that, following his giving notice, he was dismissed by the email sent by Ms Perdikaris on 20 November 2023. The Respondent contends that the Applicant was not dismissed but abandoned his employment on or around 16 November 2023.
[48] Abandonment of employment is an example of renunciation. It occurs where an employee ‘ceases to attend his or her place of employment without proper excuse or explanation and thereby evidences an unwillingness or inability to substantially perform his or her obligations under the employment contract.’3
[49] The Respondent’s case is that the Applicant abandoned his employment by leaving the office on 16 November 2023 and/or by failing to attend the physical workplace over the following days. I accept the evidence of the Applicant that he left the office on 16 November in distress, saying that he would work from home. Ms Perdikaris recalls that the Applicant said words to the effect of ‘you are my boss, not Carmelle. I won’t work in these conditions.’. Ms Watkins’ evidence recalls that the Applicant said words to the effect of ‘I take orders from you [referring to Ms Perdikaris] not her [referring to Ms Watkins]’. An email from Ms Watkins sent to Ms Perdikaris shortly after the meeting recounts that the Applicant said words to the effect of ‘I’m going home, I can’t do this’ or ‘I can’t handle this’ while in the meeting of 16 November. Ms Watkins’ email also details that then, as he was leaving the meeting, the Applicant said (when referring to his workload) ‘I’ll do that later’.
[50] The Applicant’s evidence, which I accept, was that when leaving the office on 16 November 2023, he took his laptop with him and said that he would work from home. There is no evidence before me suggesting that Ms Perdikaris objected to the Applicant leaving the office or working from home or taking his work laptop with him nor that she requested or directed the Applicant to stay at the office to finish the day’s work.
[51] Approximately ten minutes after leaving the office, the Applicant contacted Ms Perdikaris and asked for an urgent meeting to discuss his concerns. Ms Perdikaris declined, stating that she could not meet as she had other meetings to attend to. In her statement, Ms Perdikaris said that she declined this meeting as she was anxious and scared as a result of the Applicant’s angry and aggressive behaviour. As per [39] above, I have placed reduced weight on the evidence of Ms Perdikaris given that the Applicant was not able to cross-examine her. It is not disputed that Ms Perdikaris and the Applicant agreed to meet the next day over the phone. I infer from the agreement to have a phone discussion that Ms Perdikaris was not expecting the Applicant to attend the office to work the next day. I accept the Applicant’s recollection of the conversation held on 16 November 2023 over that of Ms Perdikaris and his uncontested evidence that he was not asked to return to the office on 16 November 2023, nor told that he could not work from home. I consider that the evidence of Ms Watkins is broadly consistent with that of the Applicant in that he committed to performing tasks later. It is readily apparent that he was upset, and I accept that he may have said words to the effect of ‘I’m going, I can’t do this’. However, I do not consider given the entirety of the evidence before me regarding the events of 16 November that any statement to this effect was advice from the Applicant that he was not willing to continue to work for the Respondent. Rather, I consider this to be an expression of frustration by the Applicant in response to what had occurred at the meeting of 16 November 2023. I find that the Applicant did not at any point say that he was not willing to continue to work for the Respondent.
[52] In her statement, Ms Perdikaris says that it was clear to her and Ms Watkins that the Applicant had abandoned his employment when he left the premises on 16 November 2023. However, it is apparent from the contemporaneous email Ms Watkins sent to the Applicant on 16 November 2023, which referred to their ongoing working relationship and that she anticipated seeing the Applicant on Friday or Monday, that the Applicant’s conduct had not demonstrated to her that the Applicant did not intend to keep working for the Respondent. I note that this is also consistent with her email of 16 November to Ms Perdikaris where Ms Watkins recalls that at the end of the meeting, the Applicant said that he would perform certain tasks later.
[53] Despite the Applicant’s advice on 16 November 2023 that he would work from home until a meeting was held, Ms Perdikaris did not ask for the Applicant to attend the office to work on 17 November 2023 or to attend the 17 November meeting with her in person. Ms Perdikaris cancelled this meeting shortly before it was due to start, saying that she would advise when they could ‘talk’. The Respondent did not ask the Applicant why he had not attended the office on 17 November 2023. I accept the Applicant’s evidence that he continued to perform work for the Respondent on 17 November 2023 and 20 November 2023.
[54] The Applicant then contacted Ms Perdikaris again early on Monday 20 November 2023 advising her that he continued to work from home and asking when a meeting could be convened. The Applicant’s continued performance of work and repeated contact with Ms Perdikaris asking for a meeting does not suggest or indicate an abandonment of employment, nor does his departure from the office after his altercation with Ms Watkins.
[55] In these circumstances, having considered the totality of the evidence before me, I do not consider that the Applicant ceased to attend his place of employment ‘without proper excuse or explanation evidencing an unwillingness or inability to substantially perform’ his obligations under the employment contract, such as would be required to establish abandonment of employment. The Applicant advised his manager that he intended to work from home until they had had a meeting regarding his concerns. Ms Perdikaris did not object to the Applicant working from home, nor request or direct him to attend the workplace or call him to ascertain his whereabouts. The Applicant was contactable via email and phone during the period he was absent from the office. He persisted in requesting a meeting and continued to perform his work.
[56] I find that the Applicant did not abandon his employment. I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent by Ms Perdikaris sending the email to the Applicant on 20 November 2023.
[57] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the Act, and the Respondent’s jurisdictional objection is dismissed on that basis. “
Stanzel v Koureli Pty Ltd [2024] FWC 2467 delivered 10 September 2024 per Grayson DP