Am I still entitled to an unfair dismissal remedy if my employer mistakenly believes that I have resigned?

By Alan J. McDonald

The Issue

The employee, a rental manager, sought a remedy for Unfair Dismissal against City Motor Transport Group, a small business motor vehicle rental company. The employer contested the application on the basis that he had not been dismissed at the initiative of the employer, and asserted that the employee had resigned.

What happened?

On 13 June 2013, the employee’s father passed away.

On 14 June 2013, the employee advised the employer that he would take bereavement leave.

On 17 June 2013, the employee advised his employer that he would need to take a few weeks of leave to travel to Croatia for funeral arrangements.

On 20 June 2013, the employee emailed his employer requesting four weeks and four days of annual leave from 1 July 2013 to 1 August 2013 and would return to work on Friday 2 August 2013. The employee had insufficient annual leave entitlements for this period.

On 28 June 2013, the employee was given two envelopes by the Operations Manager. One contained cash for weekly wages and the other contained a cheque for payment of the two weeks’ annual leave which stated “Termination Pay – Employer [sic] Resigned (Notice By Employee)”.

On 1 July 2013, the employee emailed his employer rejecting any suggestion that he had resigned and asked “Please confirm that I’m on 2 weeks annual leave and the remainder is on leave without pay.” No response was received.

On or around 1 August 2013, the employee contacted the Operations Manager and asked whether he would be required to work on 2 August 2013 or if he could start on 5 August 2013.

The Operations Manager instead sent him an SMS stating “…to apply for a position…” The employee again emailed the Operations Manager reiterating his rejection of any resignation.

On 5 August 2013 and the following four days, the employee attended work.

On 8 August 2013, the Operations Manager emailed the employee the employee to provide a letter from his Doctor, confirming that he was fit and able to drive, and that he “…reapply for position with the company…” Further, the email from the Operations Manager stated:

“If you are not able to provide such documents by 9am tomorrow please note that we are not able to offer you any employment on the basis that such documents have not been provided.”

On 9 August 2013, the employee stated that he had already provided a medical certificate and objected to re-applying for a position as he had not resigned. The operations manager said that as he had not re-applied for a position and as she considered that he had resigned, he should leave the premises immediately. The employee was asked to give the employer his bank account details so that wages for that week could be paid to him by direct transfer. He provided the bank details and left the workplace as instructed.

The employee was paid one week’s wages for the week of 5 to 9 August 2013 and no amounts in lieu of notice.

Outcome

The employee was held to have been summarily dismissed at the initiative of the employer and that this dismissal was harsh, unjust and unreasonable.

By reason of the fact that the employer did not clarify the position of the applicant’s leave despite a formal request to do so, the employee was entitled to treat the absence as a period of leave.

The Commissioner also preferred the evidence of the employee over the Operations Manager and found it difficult to believe that a verbal indication that failure to return to work after two weeks leave would be treated as a repudiation of the employment and be a resignation. The Commissioner held at para 45 that;

“A matter of such significance, which would bring almost seven years of employment to an end, should have been the subject of clear written direction by the employer.”

The Commissioner held that reinstatement was inappropriate due to the practical impact of a small office environment, despite the employee’s unsuccessful efforts to obtain alternative employment. In assessing the compensation to be ordered, the Commissioner considered the attempts of the applicant to mitigate his loss by seeking alternative employment and that there was no misconduct which contributed to the dismissal. The employee was awarded restoration of lost pay of 26 weeks’ remuneration of $25,350.00.

What does this mean for you?

When filing an Unfair Dismissal application, you must ensure that you have been dismissed by reason of the actions of the employer and not yourself as employee.

Actions of an employee can be inconsistent with the continuation of employment such that the employer will be entitled to treat such actions as the repudiation of the employment. Accordingly you will not have been dismissed at the initiative of the employer as required by the Fair Work Act 2009 (Cth) and will not be entitled to file an Unfair Dismissal application.

For example, acting against the clear instructions of your employer or abandoning your employment will disentitle you to an unfair dismissal remedy as you will not have been dismissed at the initiative of your employer. Commissioner Cambridge held at para 38;

“It would be readily conceivable that if an employee was absent from work for a period without an entitlement for leave and against the clear instruction of an employer, then such conduct would be likely to represent sound basis for the employer to treat the action of the employee as a repudiation of the employment. In such circumstances, the employer could legitimately characterise the action of the employee as a “resignation.”… The employee may also have abandoned the employment thus…the employment did not come to an end on the initiative of the employer.”