Dealing with 'heat of the moment' resignations

In the recent decision of the Fair Work Commission (FWC) in Dwayne Anthony Brunne v David Mansart [2024] FWC 579, Deputy President Wright held that an employee who resigned during an argument with his employer was not legally effective because the employee was in a ‘stressful state’ at the time of resigning.

Facts

The Applicant, Mr Dwayne Anthony Brunne, was employed by Mr David Mansart, in the position of Manager in a bakery and retail shop front on a full-time basis.

During his employment, Mr Brunne made complaints to Mr Mansart regarding a need for further assistance during a busy shift. It was common that Mr Brunne would often be the only employee who worked the retail section of the Bakehouse, particularly during busy periods.

On 9 September 2023, Mr Brunne asked Mr Mansart for assistance, during a busy shift. Mr Mansart served one customer then retired to the back of the store. Mr Brunne became frustrated with Mr Mansart, and according to Mr Mansart, began yelling. Mr Brunne then told Mr Mansart he was 'sick of everything' and that he was leaving.

The following day, Mr Brunne sent a message to Mr Mansart, stating 'Saturday was Sunday, tomorrow is a new day, see you in the morning'.

Mr Brunne submitted that on 11 September 2023, he was unable to bring himself into work. He communicated to Mr Mansart that he needed time off and intended to access sick or annual leave. Mr Brunne received a medical certificate which certified that Mr Brunne was unfit to work from 13 September 2023 to 25 September 2023.

However, Mr Mansart’s version of events were that on 11 September 2023, Mr Brunne attended the Bakehouse in casual attire, and stated he was resigning and had come to return the key to the premises. Mr Mansart recalled that Mr Brunne said words to the effect of 'I am over it' and that he was quitting.

This was supported by a text message exchange between Mr Brunne and former colleague. The colleague texted Mr Brunne ‘heard you quit. Finally!’, to which Mr Brunne responded he ‘finally got out’.

On 17 September, Mr Brunne had noticed his pay had not been deposited and queried this with Mr Mansart. On Friday 22 September 2023, Mr Brunne received an email response from Mr Mansart, outlining that Mr Brunne had terminated his own employment by 'self-action'. A letter within the email outlined that one week’s wages were deducted from the annual leave entitlement due to Mr Brunne resigning without notice.

Mr Brunne then made a claim with the FWC to have the dismissal dealt with, pursuant to section 365 of the Fair Work Act 2009 (Cth) (FW Act).

Decision

The key issue in dispute was whether Mr Brunne was ‘dismissed’. The FW Act relevantly provides that dismissal occurs if ‘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’.

The FWC held that Mr Brunne resigned from his employment on 11 September 2023. In making this decision, significant weight was placed on the text exchange between Mr Brunne and Ms Lim. In particular, the statement 'finally got out' was indicative of the employment relationship ending.

However, the FWC then considered the circumstances in which a resignation may be regarded as a dismissal.

In this situation, where the employer treats the resignation as a termination of employment rather than clarifying the statement after a reasonable time, this may be characterised as a termination of employment at the initiative of the employer. Further, a resignation may be ‘forced’ by conduct of the employer. That is, where the employer engaged in conduct with the intention of bringing the employment relationship to an end or whether the termination of employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. This was supported by evidence of a text message from the Applicant to a former coworker, stating that ‘it all kind happened really fast that I didn’t plan my exit properly’.

Given that Mr Brunne brought a medical certificate stating he was unfit to work, the FWC held the view that Mr Brunne at the time was in a 'state of emotional stress or mental confusion' during the period where he resigned, such that he could not be reasonably understood to be conveying a real intention to resign.

The FWC held that Mr Brunne presenting a medical certificate to Mr Mansart should have alerted Mr Mansart to the possibility that Mr Brunne did not intend to resign. Further, this should have been evident to Mr Mansart when Mr Brunne queried his lack of pay. The FWC noted that Mr Mansart did nothing to clarify with Mr Brunne on whether he intended to resign, or take steps to confirm the resignation and then pay out Mr Brunne's entitlements. In those circumstances, the FWC held that Mr Brunne's resignation was not ‘legally effective’.

As such, the FWC decided that Mr Mansart's termination letter dated 22 September 2023 was the principal contributing factor resulting directly or consequentially in the termination of Mr Brunne's employment. Therefore, Mr Brunne's employment was terminated at the initiative of the employer.

Take home messages

This case serves as a reminder for employers not to automatically accept the resignation of an employee in the heat of the moment at face value. In these situations, employer should take genuine steps to clarify an employee's intention to resign, such that the employee understands they have conveyed a willingness to end the employment relationship.

There is a real risk for employers who accept a resignation at face value, whereby the employer has in fact terminated the employment relationship unintentionally. This exposes employers to a high risk of unfair dismissal.

Should you wish to discuss the matters raised in this article, please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au, or Edward De Luca on +61 8 8210 1279 or edeluca@normans.com.au.