IN what serves as a reminder for employers to ensure dismissal processes are properly undertaken, the Fair Work Commission recently found against an employer who had wrongly assumed an employee had intended to resign.

In Mr. A v The Respondent (2016) FWC 8631 (parties not identified in the decision), the employer was found to have mistakenly assumed the employee had resigned when, during a meeting about performance issues, the employee suddenly left the workplace.

Senior Deputy President O’Callaghan ruled in favour of the employee, who had applied for an unfair dismissal remedy, after finding he had in fact suffered a panic attack which led him to abruptly exit the workplace.

Background

In this matter, there was evidence the employer was aware that the employee had anger management issues and difficulty in managing stress. SDP O’Callaghan heard that, some six to eight weeks prior to the incident, the employee displayed poor work attitude, poor performance and consistent lateness.

On the day the employee left the workplace he told his employer ‘don’t try to stop me, I am leaving, it’s finished’, before walking out. The employer then discovered the employee had taken personal items with him from the workplace.

Subsequently, the employer attempted to contact the employee without success. Later, when the employer deemed his actions to be a resignation, the employee denied resigning. He was then terminated by notice of email.

Decision

In his determination, SDP O’Callaghan noted the relevant issues included whether the employee was dismissed, when that dismissal took place and whether the dismissal was consistent with the Small Business Fair Dismissal Code and s.387 of the Fair Work Act 2009.

On the matter of whether the employee was dismissed or resigned, SDP O’Callaghan was not satisfied that the employee had resigned. He noted that even though the employer claimed they were unaware of any mental health problems, they ‘should have at least had some awareness’ that the employee was distressed and his behaviour was abnormal.

The senior deputy president found that emails sent by the employee to the employer after the incident made it clear he was not resigning.

“The absence of evidence from (the employer) does not enable me to reach a conclusion that the combination of the discussions between (the employee) and (the employer)… was to the effect that (the employee) was resigning,” he said.

SDP O’Callaghan found the employer had then formally dismissed the employee after seeking advice from the Fair Work Ombudsman. He further examined whether the dismissal met the requirements under the Small Business Fair Dismissal Code, to which he ruled it he could not be satisfied they were.

He then concluded that the dismissal was unjust or harsh under the Fair Work Act.

“I have concluded that the termination of (the employee’s) employment should be regarded as harsh in that the consequence of his abrupt departure from work on 14 July 2016 was not such that the (employer) could regard that as a resignation. The subsequent dismissal was unjust in that I am not satisfied that (the employee’s) conduct warranted dismissal and it was unreasonable in that it was based on inference rather than being confirmed by facts. Consequently, I consider that dismissal to be unfair,” SDP O’Callaghan found.

The Commission further found that the employment relationship had broken down due to performance issues, and instead of reinstatement awarded a nominal sum of 2 weeks’ pay.

Implications for employers

AREEA’s Hobart-based principal workplace relations consultant, Bill FitzGerald, said this was a ‘somewhat unusual’ case as a resignation freely given cannot give rise to an unfair dismissal claim.

“In normal circumstances an employee cannot legally rescind a resignation unless with the consent of the employer or if there is proof of duress or an employee experiencing mental health issues, as was the case here,” Mr FitzGerald said.

“It is clear from this case that employers need to ‘hasten slowly’ and examine all the background facts before assuming that an employee has resigned by suddenly leaving the workplace. A cooling off period or seeking clarification from the employee in writing is also recommended.”

AREEA’s specialist workplace relations team can assist with any performance management or dismissal related matters experienced by employers. For advice, contact your local AREEA office.