When is a resignation a dismissal?

Here is a decision of the Fair Work Commission in an unfair dismissal case which focusses on the issue of when a resignation may be regarded as a dismissal, which in this case it was not.

“Application for an unfair dismissal remedy – office manager – jurisdiction – resignation – notice period – earlier termination date used for calculating final payment – whether dismissed – if dismissed, date dismissal took effect – whether application out of time – no dismissal – jurisdictional objection upheld

[1] On 14 September 2022 Marie Mayers (the applicant or Ms Mayers) applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. Ms Mayers says she was dismissed on 31 August 2022 with retrospective effect to 12 August 2022.

[2] At the date of alleged dismissal, Ms Mayers was employed as an office manager in a legal firm.

[3] Ms Mayers claims her dismissal was harsh, unjust or unreasonable. She seeks compensation.

[4] The respondent is Grace Lawyers Pty Ltd (Grace Lawyers, the employer or the respondent).

[5] Grace Lawyers oppose the application. It filed a response on 4 October 2022. It raises jurisdictional issues. It contends that Ms Mayers was not dismissed, but resigned. In the alternative, it submits that if there was a dismissal, the application was lodged out of time and that the time for lodgement should not be extended.

[6] Ms Mayers disputes that her application was lodged out of time. She submits, in the alternative, that if lodged out of time then an extension of time should be granted.

[7] At the employer’s request, conciliation has not been conducted in light of the jurisdictional issues.

[8] I issued directions on 27 September 2022. I directed that the jurisdictional issues (whether dismissed; if dismissed, date dismissal took effect; whether out of time; and if out of time, whether time should be extended) be dealt with in a single jurisdictional hearing.

[9] In advance of the jurisdictional hearing, I received materials from Ms Mayers and Grace Lawyers.

[10] I heard the jurisdictional issues by video conference on 10 November 2022.

[11] Ms Mayers was self-represented. Grace Lawyers was represented by a partner of the firm, Mr Radman.

[12] This decision deals only with the jurisdictional issues.

Facts

[13] The facts are largely not in dispute.

[14] I heard evidence from Ms Mayers and from Mr Radman. 1

[15] I make the following findings. In so doing, I have taken all relevant material into account but, for the sake of brevity, only outline the facts most salient to the determination of the matter. Some facts, including certain emails and other background information, are not referenced so as to not add undue length to these reasons.

[16] Grace Lawyers is a mid-size legal practice currently operating in Sydney, New South Wales.

[17] Mr Radman, a legal practitioner holding a NSW Principal Practising Certificate, is one of a number of partners.

[18] On 26 April 2017 Ms Mayers commenced work for Grace Lawyers, initially as a receptionist. At the date her employment ceased, she was office manager.

[19] In the event of a resignation, Ms Mayers contract of employment required her to provide eight weeks notice which the employer could require be worked out, paid out in lieu or part worked out and part paid out. 2

Resignation

[20] On 13 July 2022, under cover of an email which stated “Please find attached my letter of resignation. I am currently in a situation where I must put my personal health first”, Ms Mayers gave notice of resignation. She advised: 3

“Dear Daniel,

Please accept this letter as formal notification of my intention to resign from my position as Office Manager and HR Manager with Grace Lawyers.

Unfortunately, stress and fatigue has got the better of me and I have some health issues that require my attention. I understand I am to provide 8 weeks’ notice as per my contract, however given my circumstances, I am kindly requesting that my final day be Friday, 12 August 2022.

I would like to take this chance to thank you for the opportunity to have worked in the position for the past 6 months in this role, and previous 5 years in reception. I have learned a great deal during my time here and have enjoyed collaborating with yourself, Colin, Peter, Jessica and Jason. I will take a lot of what I have learned with me and will look back at my time here as a valuable period of personal and professional growth.

During the coming weeks, I will do what I can to make the transition as smooth as possible and will support the firm in whatever way I can to hand over my duties to colleagues or to my replacement. Please let me know if there is anything further I can do to assist in this process.

Yours Sincerely,

Marie Mayers”

[21] As noted, the letter of resignation requested “my final day be Friday 12 August 2022”.

[22] The partners of the firm had not sought out Ms Mayers resignation.

[23] Following the resignation, and in particular the four weeks between 13 July 2022 and 12 August 2022, Ms Mayers commenced working out her notice period. She attended for work and undertook normal duties.

[24] Mr Radman spoke to Ms Mayers about her resignation on 13 July, 19 July and 21 July 2022.

[25] In their discussions on 13 July 2022 Ms Radman drew attention to the fact that Ms Mayers was required to give eight weeks notice of resignation. However, the primary focus of that meeting, and a subsequent email response by Ms Mayers on 15 July, was an expression of view by the employer that it wished Ms Mayers to re-consider her resignation.

[26] At the meeting on 19 July 2022 Ms Mayers and Mr Radman were unable to agree to terms under which Ms Mayers may have been willing to remain employed. In light of that, she advised that she would “stick with my original resignation”. 4

[27] At the meeting on 21 July 2022 Mr Radman discussed with Ms Mayers the period of notice she had given. It was agreed that Ms Mayers would provide notice to 31 August 2022, not 12 August 2022 as she had originally advised. This revised date was less than the contractual period of notice (eight weeks) but more than the four weeks originally given.

Salary payment

[28] Ms Mayers was paid monthly, two weeks in arrears and two weeks in advance.

[29] On 12 August 2022 a regular monthly salary payment was made by Grace Lawyers and deposited into Ms Mayers bank account. 5 The salary paid was for the period from 1 August 2022 to 31 August 2022 inclusive.

[30] In making this payment, the employer was aware that Ms Mayers final day of employment was to be 31 August 2022. 6

First medical certificate

[31] On Friday 12 August 2022 Ms Mayers attended for work. She found the working environment to have become uncomfortable on account of her resignation and felt anxious and stressed as a result. At lunchtime, she saw her general practitioner. She was provided a medical certificate as follows: 7

“This is to certify that I have consulted Marie Ann MAYERS on 12/08/2022.

In my opinion she has been suffering from medical illness**.

As a result, she is unavailable for work from 12th August 2022 to 19th August 2022 inclusive.

Dr David Wai…”

[32] Ms Mayers returned to the office and decided to work out the remainder of the day. She did not give the certificate to her employer as she felt that doing so whilst at the workplace would add to her stress.

[33] On Sunday evening 14 August 2022, Ms Mayers sent Mr Radman the medical certificate under cover of the following email: 8

“Dear Daniel,

I am writing to inform you that I saw my GP on Friday and have been advised that I am required to take a leave of absence due to health concerns.

I hereby tender my medical certificate that covers me until Friday, 19 August 2022.

I have left my key on my desk in case you need it in the interim.

Thank you.

Marie”

Dispute over medical certificate

[34] The following day (15 August), Mr Radman inspected Ms Mayers’ office. It was clear of Ms Mayers personal effects, and she had left her office keys and building access pass on the desk.

[35] Mr Radman hypothesised that Ms Mayers had cleared out her office not intending to return to work despite an agreed end date of 31 August 2022. At 11.39am and again at 3.57pm that day (15 August) he wrote to Ms Mayers as follows: 9

“Marie,

I am really disappointed that you send me an email and attached doctors certificate late on a Sunday night to advise you will be absent all week due to ‘health concerns’ and have not called me to discuss.

This is especially so given you are finishing work in two weeks, I am on leave this Thursday and Friday and I have no update on IT, recruitment or other work we need to work through in your absence.

We will need a further justification of why you need to take a whole week of sick leave and cannot simply rely on a medical certificate without any detail other than you have a medical illness.

Please advise the nature of the issue which requires you to be away from work for the whole week and whether you will be able to work out the last 8 working days of the month from 22 August 2022.

Kind regards

Daniel Radman” (emphasis in original)

“Marie,

I have tried to contact you by telephone and have left a message for you to call me back or to email me.

I wanted to discuss some urgent maters (sic) that I need to attend to in your absence relating to IT, recruitment and general office matters (such as letter head, furniture etc.).

I have noticed that your office is unlocked (when it should be locked) and that all your personal effects and items have been removed from your office and for all intents and purposes the office has been vacated.

Can you urgently let me know whether you will be returning to work and when you will be available to discuss the projects you have been working on so I can attend to them while you are away.

Kind regards

Daniel Radman” (emphasis in original)

[36] The next day, 16 August 2022, Ms Mayers replied: 10

“Daniel,

I am not legally obligated to disclose of my ‘medical condition’ to anyone, but I can let you know that it is due to stress.

My office was cleared of my personal items four weeks ago, it was not done suddenly. My office door was left unlocked so I could leave my key behind, as previously mentioned this was in case you required it’s use for the server room, marketing room or pantry room.

You are welcome to access my emails should you need contact details for any of the suppliers I have been in contact with. Some time ago I also created a folder with these included, Guy would be able to show you where to find this physical folder.

I am due for a review by my doctor on Friday, should all be ok and I manage this week I should be fine to come back on Monday, 22nd August.

Warmest regards,

Marie Mayers”

[37] That afternoon (16 August) Mr Radman responded:

“Marie,

The law requires you to provide evidence that would satisfy a reasonable person that the time taken off work was for a legitimate reason and that a person is genuinely too ill to perform their job. I cannot ascertain that from the medical certificate you have provided.

On the facts as I know them, you came into work on Friday 12 August 2022. You carried out all your usual duties and at no time did you advise of any stress you were experiencing. At some point on Friday 12 August 2022 you went to a doctor who provided you with a medical certificate. Rather than speaking to anyone about your health concerns on the day you sent an email with a medical certificate you obtained on 12 August 2022 at about 8pm on Sunday 14 August 2022 advising you will be unavailable for work until 19 August 2022 die (sic) to a ‘medical illness’.

While we do not need to be informed of the medical condition, as an employer we should be informed about the state of a persons health and the extent to which impaired health may incapacitate a person from participating at work. In this regard, such information may assist us to give you lighter duties which would enable you to continue to work where stressful impact is minimised or eliminated. We have not been afforded this opportunity.

I hope you achieve positive health outcomes this week and would appreciate a call or email to advise whether you will be able to resume work on Monday noting that we can accommodate lighter duties that would be considered less stressful for you should your doctor advise that is what you need.

Kind regards

Daniel Radman”

[38] Ms Mayers felt stressed by Mr Radman’s responses. She visited her doctor on 16 August 2022, and discussed the email exchanges with him. He prescribed medication for anxiety.

Second medical certificate

[39] Three days later, on 19 August 2022, Ms Mayers again visited her doctor for a review of her condition. Her doctor provided a second medical certificate: 11

“This is to certify that I have consulted Marie Ann MAYERS on 19/08/2022.

In my opinion she has been suffering from medical illness**.

As a result, she is unavailable for work from 19th August 2022 to 31st August 2022 inclusive.”

[40] On the morning of 22 August 2022 Ms Mayers sent the second medical certificate to Mr Radman under cover of an email which stated: 12

“Please find attached a new medical certificate. My doctor has stated I will not be returning to work. As such, this certificate will see me through to my end date of August 31. Sorry for the inconvenience.”

[41] Aside from forwarding the second medical certificate, Ms Mayers did not communicate with the employer on Mr Radman’s suggestion in his email of 22 August 2022 that the employer could allocate light duties to her.

[42] Shortly after receiving the second medial certificate, Mr Radman inquired (by email) of Ms Mayers whether she had any of the employer’s property in her possession. Ms Mayers replied that she had none.

[43] Later that afternoon (22 August 2022) Mr Radman wrote to Ms Mayers by email in the following terms: 13

“Subject: Termination of Employment

Attachments: Letter of Resignation

Marie,

By email and letter dated and sent on 13 July 2022 (copy attached), you gave notice of your intention to terminate your employment with this firm on Friday 12 August 2022. In this correspondence you acknowledged that you should provide 8 weeks’ notice as required under your employment contract but requested the earlier termination date of Friday 12 August 2022. By Agreement, we agreed that your final working day with the firm was to be Wednesday 31 August 2022.

It is clear to me from recent events that without notice to anyone in the firm:-

  1. on or prior to 12 August 2022, you removed all personal effects and personal property from your work office; and
    2. you vacated and left your work office on 12 August 2022, leaving your work laptop, office keys and passes on your work desk.

The conflation of all of the above events gives rise to the strong inference that despite agreement that your last day with the firm was to be Wednesday 31 August 2022, you did not intend to return to work at Grace Lawyers after Friday 12 August 2022. I refer to my email to you dated 16 August 2022 (copy below) and say that in all the circumstances, the two medical certificates you have provided us which simply state that you are unable to work due to a ‘medical illness’ for the period from 12 August 2022 to 31 August 2022 is not adequate to inform us as to extent to which impaired health may incapacitate you from participating in work at Grace Lawyers. Further, you have not engaged or co-operated with us at all since 12 August 2022 to discuss lighter duties you may have been able to undertake during this time.

While reserving all of our rights arising out of the your breach/es of your employment contract with us, we will calculate and make adjustments/payments of your salary and entitlements for the period up to and including 12 August 2022 with such payment to be made into your nominated bank account on or about Friday 26 August 2022.

Kind regards

Daniel Radman” (emphasis in original)

[44] No further communication occurred between Ms Mayers and her employer in the week 23 August 2022 to 30 August 2022 (inclusive).

Communication 31 August 2022

[45] On the scheduled final day of her employment (31 August 2022), Ms Mayers remained absent from work under the terms of the second medical certificate.

[46] At 8.31am that day (31 August 2022) Mr Radman, having had his office prepare a final payment calculation of Ms Mayers entitlements, sent Ms Mayers the following email: 14

“Marie,

Please find attached your final payment and entitlements schedule.

The attached schedule has been calculated based on a termination date of 15 August 2022 and in accordance with your employment contract dated 17 November 2021.

We note that you are indebted to Grace Lawyers Pty Ltd in the amount of $628.30. You may also be indebted to us for other amounts owing under your employment contract or the relevant award.

While reserving our rights generally, at this stage, Grace Lawyers Pty Ltd does not propose to enforce any of its rights against you in relation to your contract of employment or indebtedness to the firm.

We wish you success with your ongoing career and life choices and hope we can put the circumstances of your recent departure from our firm behind us.

Kind regards

Daniel Radman” (emphasis in original)

[47] In evidence, Mr Radman indicated that the reference to “15 August” in this email was an error on his part, and that it should have read “12 August”.

[48] The calculation schedule was titled: 15

“Marie Mayers Termination Payment Calculation

Termination date: 12 August 2022”

[49] The calculation schedule calculated a refund for “normal pay prepaid on 12 August 2022 for 13 days from 15th to 31st August 2022”. The amount calculated after payment of statutory entitlements was a nett amount said to be owing by Ms Mayers to the firm of $628.30.

[50] Ms Mayers immediately replied (8.48am): 16

“Hi Daniel,

On discussing with Fair Work, I am entitled to receive my wages in full and all annual leave owed up until today, 31 August 2022.

Fair Work is in agreement that in no way have I breached my contract with Grace Lawyers and all email correspondence and medical certificates prove of this.

I am asking that my full entitlements be paid to myself within the next five business days. If not received thereafter Fair Work will be providing a case manager on my behalf.

I do hope we can overcome this and end on positive terms. It would be very disappointing after five and a half years of loyalty to Grace lawyers that it should end on a sour note.

Warmest regards,

Marie Mayers”

[51] Mr Radman responded with a short email sent at 8.58am: 17

“Marie,

Thanks for your email.

We refer to previous emails including our attached email to you dated 22 August 2022 in reply.

Kind regards

Daniel Radman” (emphasis in original)

[52] Ms Mayers further replied at 9.02am: 18

“Hi Daniel.

These emails I already have, have been passed on, and are not valid under the circumstances.

Should you wish to not agree to pay me as per what I am lawfully owed, please respond acknowledging this and I will then proceed accordingly.

Thank you,

Marie.”

Lodgement of proceedings

[53] On 1 September 2022 Ms Mayers contacted the Fair Work Ombudsman (FWO) to ascertain her rights. The FWO advised Ms Mayers that it would examine the matter and get back to her.

[54] Ms Mayers evidence was that on 14 September 2022 the FWO advised Ms Mayers that the issue appeared to be an unfair dismissal dispute and not a wage claim matter. Ms Mayers was informed that unfair dismissal claims needed to be lodged with the Fair Work Commission.

[55] Ms Mayers lodged these proceedings for unfair dismissal that day (14 September 2022).

Submissions

Ms Mayers

[56] Ms Mayers application asserts that she was terminated by Grace Lawyers on 31 August 2022 with a date of effect retrospective to 12 August 2022.

[57] Ms Mayers submits that the termination was retrospective because whilst her employment continued until 31 August 2022 in accordance with her period of notice, Mr Radman on that day (31 August 2022) advised that he considered her employment terminated from 12 August 2022 and calculated a sum notionally to be re-paid based on her statutory entitlements less monies paid beyond that date.

[58] Ms Mayers submits that the reason for Grace Lawyers making this decision was unlawful and unfair. Ms Mayers submits that she had provided her employer valid medical certificates certifying her absence on personal leave between 12 and 31 August 2022, and that the employer was compelled by law to recognise the certificates and provide leave according to her accrued entitlement to personal leave to that date.

[59] Ms Mayers submits that by advising her on 31 August 2022 that the employer would only retrospectively pay her until 12 August 2022 and by asserting that her employment terminated effective 12 August, the employer took action on 31 August 2022 to bring her employment to an end with retrospective effect from a date inside the period of notice that she had given.

[60] That, Ms Mayers submits, is a termination of employment at the initiative of the employer within the meaning of the FW Act.

[61] Ms Mayers submits that her application is not out of time because it was filed within 21 days of the date she was notified of dismissal (31 August 2022).

[62] In the alternative, Ms Mayers submits that if her application is out of time by virtue of the 21 days being counted from 12 August 2022, she submits that time should be extended because it was not until 31 August 2022 that she was made aware by her employer that it regarded her dismissal to have taken effect from 12 August 2022 and that she took prompt action to take advice from the FWO and then file a claim as recommended by the FWO. She submits that in the circumstances she was unable to file earlier.

[63] This, Ms Mayers submits, are exceptional circumstances warranting an extension of time, if that is required.

Grace Lawyers

[64] Grace Lawyers submit that this is a case of resignation, not dismissal. A resignation is not a dismissal. It says that the resignation was not forced by conduct or a course of conduct engaged in by Grace Lawyers. It says that it did not want Ms Mayers to resign and asked her to re-consider and withdraw her resignation.

[65] Grace Lawyers submit that the dispute over the medial certificates and their adequacy is not a matter that goes to jurisdiction. At best, they are matters that would be relevant to merit but only if there was a dismissal, which there was not.

[66] Grace Lawyers submit that any dispute over whether sums are due to Ms Mayers or owing by Ms Mayers are not matters for the unfair dismissal jurisdiction.

[67] Grace Lawyers submit that Ms Mayers continued to be employed until 31 August 2022 and that her employment ceased that day when the agreed period of notice took effect. It says that a calculation of monies due on termination is required to be made by employers in the case of an employee resigning. It says that a reference in its calculation schedule to “termination” and in a related email does not mean a dismissal occurred. Termination can be by resignation.

[68] Grace Lawyers submit that the fact it retrospectively calculated Ms Mayers entitlements to a date prior to 31 August 2022 based on its view about the inadequacy of the first and second medical certificates does not characterise the resignation as a dismissal.

Consideration

[69] Leaving aside the jurisdictional issues requiring determination, I am otherwise satisfied that Ms Mayers was a person protected from unfair dismissal within the meaning of s 382 of the FW Act. She served the required minimum employment period (s 382(a)). Her annual rate of earnings did not exceed the high-income threshold (s 382(b)(iii)). Her employer was a “national system employer” within the meaning of s 14 of the FW Act.

[70] Nor is Grace Lawyers a “small business” for the purposes of the unfair dismissal provisions of the FW Act.

[71] In this proceeding, three issues require determination:

  1. Was Ms Mayers dismissed within the meaning of the FW Act?
  2. If Ms Mayers was dismissed, on what date did her dismissal take effect?
  3. If (but only if) Ms Mayers was dismissed and if her application is out of time, should an extension be granted?

Was Ms Mayers dismissed?

[72] I now consider whether Ms Mayers was dismissed.

[73] Section 386 of the FW Act 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[74] Whether Ms Mayers was dismissed requires an objective finding of fact.

[75] There is no doubt that Ms Mayers relationship with Grace Lawyers came to an end. How so and when is the issue.

[76] For the following reasons, I find that Ms Mayers was not dismissed within the meaning of the FW Act.

Dismissal on employer’s initiative

[77] Firstly, I consider whether there was a dismissal at the initiative of the employer within the meaning of s 386(1)(a) of the FW Act.

[78] The evidence is that Ms Mayers continued to be employed on each day until and including 31 August 2022.

[79] Following giving notice of her resignation, two periods arose.

[80] A first period was from 13 July 2022 to 12 August 2022 inclusive when Ms Mayers presented to work in the normal fashion and performed regular duties. In this first period, Ms Mayers was working out the first four weeks of her notice.

[81] A second period arose from 13 August 2022 to 31 August 2022 inclusive when Ms Mayers was absent from the workplace due to a twice certified but unspecified medical illness, an illness that Ms Mayers separately disclosed to the employer on 16 August 2022 as “stress”. 19

[82] That Mr Radman in this second period was inquiring about Ms Mayers availability to return to work including on light duties creates a strong inference of continuing employment. That Grace Lawyers paid Ms Mayers on 12 August her monthly salary via the normal payroll run through to 31 August 2022 creates an even stronger inference of continuing employment during this second period.

[83] There is no basis to suggest that an employee absent on account of illness is not in continuing employment. Absence on account of personal illness does not break continuity of service. 20 Nor is continuity broken by a dispute between an employer and an employee as to the adequacy or otherwise of medical certification or a dispute as to whether the employee has complied with the formal requirements of the FW Act, an industrial instrument or their contract of employment in claiming personal leave.

[84] Having found that Ms Mayers was continuously employed on each day until and including 31 August 2022 during which she was working out an agreed notice period and thus not terminated prior to then, does the conduct by Grace Lawyers on 31 August 2022 alter this finding?

[85] I think not.

[86] On 31 August 2022, the last day of her agreed notice period, Grace Lawyers advised Ms Mayers of her final termination payments. It did so by advising a calculation it had made. It referred to its calculation as a “Termination Payment Calculation” and advised that it had calculated entitlements “based on a termination date of 15 August 2022”.

[87] Grace Lawyers had foreshadowed this position one week earlier. On 22 August 2022 it had advised Ms Mayers that “we will calculate and make adjustments/payments of your salary and entitlements for the period up to and including 12 August 2022 with such payment to be made into your nominated bank account on or about Friday 26 August 2022.”

[88] Whatever the lawfulness or reasonableness of this final pay calculation by Grace Lawyers using a self-determined retrospective termination date, for the following reasons, I do not conclude that it was a “dismissal” within the meaning of the FW Act.

[89] Ms Mayers employment had continued and was continuing on the very day (31 August) Grace Lawyers advised her of its final payment calculation.

[90] Whether employment exists at a given point in time is a question of fact. Termination is the point in time when an existing contract of employment is brought to an end or ceases to exist by operation of law. Facts cannot be retrospectively conceived.

[91] I take into account that under the FW Act the date a dismissal is notified can be different from the date a dismissal takes effect. Section 394(1) refers to an employee “who has been dismissed” whilst s 384(2)(a) uses the phrase “after the dismissal took effect” as the starting point for calculating the twenty-one day statutory time limit for filing unfair dismissal applications.

[92] This statutory distinction is not material for current purposes. The date Ms Mayers alleges dismissal took effect was retrospective to the notice she says the employer gave on 31 August 2022. Whilst a dismissal can take effect prospectively from the date it is notified, and not uncommonly does, the notion that a “dismissal” takes effect retrospectively from the date of notice notwithstanding the contract of employment having lawfully subsisted during that period is neither express nor implicit in the language of the FW Act.

[93] For such an outcome to have been contemplated by the legislature would require express provision and clear intent. There is none in the language of the FW Act.

[94] Circumstances would be different if, as a matter of fact, Ms Mayers employment had ended on 12 August 2022 (for example, by operation of law) but advice to that effect was not communicated until a later date. That is not what occurred. In this matter, the retrospectivity is said to attach to the termination itself, not just advice of it.

[95] Ms Mayers relies upon the use of the word “termination” in the body of Mr Radman’s email of 31 August 2022, in the heading of the payment calculation and in the subject line of his earlier email of 22 August 2022.

[96] This does not alter my finding. Ms Mayers contract of employment was terminating on and from an agreed date, being 31 August 2022. Termination of a contract of employment is not solely by dismissal at the initiative of an employer. A resignation from employment “terminates” an employment contract. Whilst context is relevant, where an employee has resigned, the use of the word ‘termination’ by an employer in making a final payment calculation does not of itself constitute dismissal.

[97] In this matter, the employer did not initiate that termination, or unilaterally impose the 31 August date. The termination was initiated by Ms Mayers when she gave notice of resignation. The date was agreed between the parties after an unsuccessful negotiation that explored whether she would withdraw her resignation.

[98] In this matter, the employer did more than simply refer to “termination” when advising its final payment calculation. It advised and applied a retrospective termination date for the purposes of that calculation. Thus, Ms Mayers submits that she was dismissed retrospectively because her final fortnight of salary was clawed-back by the employer when it unilaterally calculated an earlier termination date in its final payment to her.

[99] However, the issue in these jurisdictional proceedings is not whether the act of claw-back was lawful or reasonable. It is whether the conduct constituted a dismissal.

[100] The conduct by the employer on 31 August 2022 was a unilateral decision to not pay Ms Mayers beyond 12 August 2022 by using that as the termination date for the purposes of calculating its final payment obligations. Having already paid Ms Mayers until 31 August 2022, the effect of this decision was that the employer clawed-back wages paid from 15 to 31 August 2022 and, after allowing for the value of accrued statutory entitlements, the employer calculated a deficit payable to it. In doing so, the employer deprived Ms Mayers of a payment on termination to the value of her accrued entitlements.

[101] The employer’s conduct in making this calculation, and its underpinning rationale about the inadequacy of medical certificates relevant to Ms Mayers claim to personal leave in that final fortnight of employment, gave rise to immediate objection by Ms Mayers. She saw it as retribution for not being at work during the final fortnight of the agreed notice period notwithstanding medical advice that she was unfit to do so.

[102] Given that the notion of retrospective dismissal is not supported by the FW Act, and given that Ms Mayers employment continued until 31 August 2022 and that she had been paid up to and including that day, how then is the employer’s conduct to be characterised?

[103] I characterise the conduct as a termination calculation using a termination date different to that which existed in fact. The conduct, notwithstanding its unilateral nature, did not re-characterise the resignation as a dismissal or constitute a fresh act of dismissal.

[104] Thus, Ms Mayers was not dismissed with effect from 12 August 2022 even though Grace Lawyers subsequently clawed-back salary payments made from that date.

[105] I take into account that it is well established that an employer deciding to unilaterally terminate a contract of employment inside an employee’s period of notice and not pay out that notice can be said to have terminated the employee’s employment at the employer’s initiative. 21 Such conduct would be a dismissal within the meaning of s 386(1)(a) of the FW Act.22

[106] However, that is not what occurred. Grace Lawyers did not bring Ms Mayers contract of employment to an end earlier than as agreed. Rather, on the agreed termination date, Grace Lawyers unilaterally advised that it had calculated termination payments as if employment had terminated from an earlier date, thus clawing-back a sum of monies already paid from sums due on termination.

[107] The employer’s conduct, however contested or contestable, did not constitute a fresh termination. Ms Mayers remedy, if the conduct was unlawful, is in the courts for sums due on termination or for statutory or contractual breach. Whilst reasonableness of the terms under which a termination is made can be assessed in unfair dismissal proceedings and may render a dismissal unfair, that is only permissible if, in fact, there was a dismissal. Absent a dismissal, jurisdiction does not exist to conduct such an assessment.

[108] Section 386(1)(a) of the FW Act is not made out.

Forced resignation

[109] Secondly, I consider whether a dismissal occurred within the meaning of s 386(1)(b).

[110] Whilst Ms Mayers resigned, and whilst s 386(1)(b) provides that a resignation is a dismissal where it is forced because of the conduct or a course of conduct by the employer, the facts in this matter do not support such a finding.

[111] The evidence clearly points to the fact that Ms Mayers voluntarily resigned and despite a request by the employer that she reconsider, and a subsequent unsuccessful negotiation, Ms Mayers reaffirmed her decision as being in her best interests.

[112] That notice of resignation, given on 13 July 2022, remained operative until 31 August 2022. Only with respect to the initially advised notice period did the terms of Ms Mayers resignation change, and whilst that notice period was altered because the employer considered one month’s notice inadequate and contrary to the terms of her contract, the quantum of notice ultimately worked out (six weeks) was an agreed compromise.

[113] In these circumstances, the resignation was not forced by the conduct or a course of conduct of the employer.

[114] Section 386(1)(b) of the FW Act is not made out.

Conclusion on whether dismissed

[115] Whilst Ms Mayers may have substantive reasons to feel aggrieved by what occurred, not all issues of alleged unfairness can be litigated in unfair dismissal applications, nor all issues associated with the termination of employment. Only dismissals within the meaning of the FW Act are capable of being the subject of this litigation. Absent a dismissal, the unfair dismissal jurisdiction is not the forum to litigate claims for monies allegedly owed when employment ends by resignation even where an employer has, on the date a resignation takes effect, unilaterally applied an earlier termination date for the purpose of calculating final payments.

[116] As neither ss 386(1)(a) or (b) of the FW Act are made out, there was no dismissal capable of sustaining an unfair dismissal application under Part 3-2 of the FW Act.

Disposition

[117] As Ms Mayers was not dismissed by Grace Lawyers, the question of what date the dismissal took effect does not arise.

[118] Further, as there was no dismissal, the question whether the application was filed within twenty-one days of dismissal or requires an extension of time or whether time should be extended does not arise.

[119] Not having been dismissed, the application by Ms Mayers does not invoke the Commission’s jurisdiction. Application U2022/9235 must be dismissed.

[120] I make one concluding comment.

[121] It is regrettable that the parties were not able to resolve this matter in advance of this jurisdictional hearing. The employer sought that the jurisdictional issue be determined in advance of conciliation. However, in practical terms, at issue is a dispute over the value of two weeks’ pay which was clawed-back. That is the remedy Ms Mayers is seeking. Whilst these proceedings are dismissed, the employer remains exposed to other potential proceedings. A continuing dispute over two weeks’ pay or payment for a fortnight of personal leave does not appear to be a productive investment of time or money.

[122] An order giving effect to this decision is issued in conjunction with its publication. 23”

Mayers v Grace Lawyers Pty Ltd – [2022] FWC 3044 – 16 November 2022 – Anderson DP