Employer's pre-dated termination letter determines true nature of employment ending
The Fair Work Commission (FWC) recently dealt with a jurisdictional objection in a general protections application involving dismissal. The case centered around a key question that affects many workplace relationships: when an employee leaves, was it truly resignation or disguised dismissal?
The worker claimed she was effectively dismissed when her employer told her she hadn't passed probation, despite her subsequent resignation letter. She argued the company had already made the decision to end her employment before she offered to resign, as evidenced by a termination letter dated prior to their final meeting.
The employer strongly disputed this version of events, insisting the worker had resigned voluntarily during the meeting and that any documentation provided afterward was merely a statement of service to assist with future employment applications – not evidence of dismissal.
The worker began her employment as a service coordinator at a Western Australia-based disability care services company in July 2024 on an annual wage of $70,000. In August 2024, she raised concerns about her wages, believing she was being underpaid at $33.60 per hour with a 70 cents per kilometre travel allowance, when she expected $35 per hour with a travel allowance of 80-90 cents per kilometre.
After raising these concerns multiple times without a satisfactory resolution, the worker was asked to attend a meeting on 30 January 2025. The company's operations manager and office manager attended in person, while a director joined via Microsoft Teams.
The meeting's purpose and what actually transpired became the central focus in determining whether the worker had been dismissed or had resigned. This distinction was crucial as it would determine whether the FWC had jurisdiction to hear the worker's general protections application under section 365 of the Fair Work Act 2009.
According to the worker, during the meeting, the operations manager handed her a blue envelope and indicated she had not passed her probation. She asked if she could resign to improve her future employment prospects, and typed a resignation letter during the meeting.
The worker stated she only opened the envelope after leaving the meeting. Inside was a letter dated 23 January 2025 stating: "We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on 31 January 2024."
The operations manager and director (who were both representatives of the disability care company) claimed that about 10 minutes into the meeting, the worker left and returned with a resignation letter.
They maintained that the letter in the envelope was prepared during the meeting after she resigned, describing it as a template meant to help with her future employment applications.
The Commissioner examined the credibility of all witnesses and the logical consistency of their stories. The termination letter's date (23 January) suggested it was prepared a week before the meeting occurred on 30 January.
The Commissioner found the employer's explanation unconvincing: "[The letter] states that she had failed her probationary period, and that [the employer] would not be continuing with her employment. I do not see how it could be used as a positive statement of service that would assist in [the worker's] future employment endeavours."
The Commissioner further noted: "Given the content of the letter, it also does not make sense that they would give it to [the worker] after she resigned. The date of the letter and the reference to a meeting to discuss why [the worker] did not pass probation also support a finding that the letter was prepared before the meeting on 30 January 2025."
The Commissioner applied the definition of "dismissed" from section 386 of the Fair Work Act, which states that a person has been dismissed if "the person's employment with his or her employer has been terminated on the employer's initiative."
Drawing on principles from a previous Full Bench decision in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli, the Commissioner noted that for a dismissal to occur: "It is sufficient that the employer's conduct would – on any reasonable view – be likely to bring the employment relationship to an end."
After weighing the evidence, the Commissioner found the worker's account more credible: "I accept [the worker's] evidence that she was told that she had not passed probation and was given the termination letter in an envelope. It makes sense that she wanted to resign after being told that she had not passed her probationary period."
The Commissioner concluded: "I find that [the worker's] employment was terminated on [the employer's] initiative. By telling [the worker] that she had not passed probation and handing her a letter that could only objectively be seen as termination letter, [the employer] dismissed [the worker]."
The Commissioner added: "[The worker] then handing in a resignation letter does not negate this," establishing that the subsequent resignation did not override the initial dismissal.
With jurisdiction confirmed, the Commissioner determined that the worker's application was within the FWC's jurisdiction and ordered that a conference be listed pursuant to section 368 of the Fair Work Act to proceed with the general protections claim.
The FWC's decision demonstrates that substance takes precedence over form when assessing whether a dismissal has occurred.
When termination and resignation occur in the same interaction, the sequence of events and supporting documentation become critical factors in determining which action legally prevailed.
