Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - resignation - no dismissal

• [1] Mr Oliver Hutchings (Applicant) has made an application for a remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed from his employment with WIP Plumbing Pty Ltd (Respondent).

• [2] The Respondent objected to the application on two grounds, the first being that it was a small business and it complied with the Small Business Fair Dismissal Code (the Code), and the second being that the Applicant had resigned.

• [3] The application was heard on 6 June 2025. The Applicant was self-represented and gave evidence on his own behalf. The owner of the Respondent, Mr Gerrard, appeared and gave evidence on behalf of the Respondent.

• [4] For the reasons outlined below, I find that the Applicant was not unfairly dismissed and as a result I will dismiss this application.

• [5] The Respondent is a small plumbing business with two employees plus its owner, Mr Gerrard.

• [6] The Applicant was employed on a full time basis as a plumber, initially as an apprentice.

• [7] The Applicant did not take issue with the contents of Mr Gerrard's witness statement. Specifically, he agreed that he had advised Mr Gerrard on or around 15 January 2025 that he was going to resign in two weeks' time. Mr Gerrard and the Applicant spoke about his resignation that day and Mr Gerrard followed up with a message to the Applicant in the following terms:

"Hey, I'm very stressed about this Oli. Like I said on the phone, I expected you to hang around the full 6 years. I really need you to commit to that Oli. I've worked too hard with you and put too much in for you to walk away now. I wanted to pair you up with a first year later this year so you can teach them the ropes and then move on when you're finished and licenced. Please let me know what your sound (sic) as its not something a small business like mine can work around"

• [8] The Applicant and Mr Gerrard had a further discussion on 17 January 2025, during which the Applicant reaffirmed he was resigning but would delay his resignation taking effect while the Respondent tried to find a suitable replacement. They also agreed to an increase of $100 per week as an incentive for the Applicant to stay longer. The Respondent placed an advertisement on SEEK that same week to look for a new apprentice to replace the Applicant.

• [9] On 5 February 2025 the Applicant sent a text message to Mr Gerrard at 11pm to say he would not be at work the following day as he had hurt his knee.

• [10] The Applicant provided a medical certificate dated 5 February indicating he was unfit for work until 19 February 2025. He subsequently provided a further medical certificate indicating he was unfit to work until 6 March 2025.

• [11] On 7 February 2025, Mr Gerrard gave evidence that he and the Applicant had "had a good chat over the phone". During that conversation Mr Gerrard said the Applicant told him he would "stop work immediately" and agreed he would send through written confirmation of his resignation so the bookkeeper could finalise his pay.

• [12] The Applicant denies that he told Mr Gerrard he would resign immediately. He says Mr Gerrard told him that "you have no choice but to quit". He says he didn't quit which is why he did not send a resignation letter to the Respondent.

• [13] On 8 February 2025 Mr Gerrard sent the Applicant a text which said:

"Hey mate, how's the knee? I'm heading through Lennox late morning today, I'll come and get the Ute. Is the fuel and bunnings card in the Ute?"

• [15] Mr Gerrard picked up the Ute that afternoon and all the Applicant's tools had been removed. Mr Gerrard says this is because the Applicant had resigned, and the Applicant says this was because he was told by Mr Gerrard on 7 February 2025 to clean it out so he could collect it.

• [16] Mr Gerrard said he tried contacting the Applicant multiple times over the course of the following week but with no reply. He said he was following up to ask the Applicant to confirm his verbal resignation in writing.

• [17] There were also text messages between Mr Gerrard and the Applicant, and between the Applicant and the Respondent's bookkeeper over the course of this period which were mostly about the Applicant's pay. Any matters relating to the Applicant's pay are not matters which can be dealt with in this application and so are not detailed here.

• [18] After not being able to contact the Applicant by phone, Mr Gerrard contacted "Fair Work" to get some advice, and he says he was told he should send correspondence to the Applicant advising him that his employment was terminated.

• [19] As a result of this advice, he sent a text message to the Applicant which said:

"Hey Oli, I haven't heard from you in a week now to discuss your work situation. I am formally terminating your employment effective immediately. Your owed annual leave will be paid end of next week. Thanks".

• [20] The meaning of 'dismissed' is defined in s.386(1) of the Act which states:

(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.

• [21] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[1] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes 'dismissed' under s.386(1) which included the following:

(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.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

• [22] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[2] Deputy President Sams noted the following when considering whether the applicant was dismissed:

1. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. 'Initiative' is relevantly defined in the New Shorter Oxford Dictionary as: "the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act."

1. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, '... a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.'

'In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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.'

1. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, '... to constitute termination at the initiative of the employer the termination must be the direct or consequential result of 'some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...'[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].

• [23] I am satisfied on the evidence that the Applicant did resign of his own accord for the following reasons:

1. I accept the unchallenged evidence of Mr Gerrard as set out above. There is no dispute between the parties that the Applicant told the Respondent on or around 15 January 2025 that he was resigning, and his resignation would take effect in two weeks' time. There is no suggestion that the resignation was in any way a result of being forced to do so because of any conduct of the Respondent.

1. There was then an agreement to defer the resignation taking effect while the Respondent sought to replace the Applicant. This did not, however, nullify or change the fact that the Applicant had resigned.

1. Given the Applicant had already advised the Respondent he was resigning on or around 15 January, I find that on balance it is more likely than not that the Applicant did confirm his resignation during the telephone call on 7 February. The resignation took effect from that date.

• [24] Unfortunately, the advice Mr Gerrard received from "Fair Work" was incorrect. He ought to have simply confirmed in writing his acceptance of the Applicant's resignation rather than saying the Applicant was dismissed. This is a different scenario, however, to circumstances where an employee resigns and is then dismissed during their notice period. In this case Mr Gerrard sent this message after the Applicant's resignation had already taken effect.

• [25] As a result, I am satisfied that this was not a termination at the initiative of the Respondent and as a result I find the Applicant was not dismissed within the meaning of the Act.

• [26] For completeness, if I am wrong and the Applicant was dismissed, I would have found that the dismissal was not unfair. This is because the Applicant undisputedly told the Respondent he was resigning, and with that, he clearly evinced an intention to bring the employment relationship to an end. He did so completely of his own accord.

• [27] Finally, the Applicant also confirmed he had alternative employment and so even if the Applicant had been unfairly dismissed, any compensation would have been minimal if anything.

• [28] Given these findings, the application is dismissed.

Mr A. Gerrard, Director, on behalf of the Respondent

[1] [2017] FWCFB 3941.

[2] [2012] FWA 2473.

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