FWC examines whether employer's ultimatum during notice period constitutes dismissal
The Fair Work Commission (FWC) recently dealt with an employment dispute involving a worker who claimed she was dismissed after attempting to resign from her position.
The case centred on whether the worker had genuinely resigned or been constructively dismissed by her employer.
The worker argued that her resignation was made with a four-week notice period, but her employer rejected the terms of her resignation and effectively dismissed her during the notice period.
She maintained that the employer's conduct during the notice period transformed her resignation into a dismissal, making her eligible to pursue a general protections claim.
The employer disputed these claims, arguing that the worker had simply resigned and was not dismissed.
This disagreement over the fundamental nature of the employment termination created a jurisdictional dispute that required resolution before the substantive matter could proceed.
The worker started employment as a personal trainer in July 2024 but began experiencing back pain that worsened when working with clients using heavy weights.
In early March 2025 her condition deteriorated, prompting her to request work modifications to accommodate her pain.
The fitness company was willing to accommodate her for one week and sought medical advice about her condition. The worker provided a doctor's certificate indicating she was only fit for light duties from 6 March 2025 to 11 April 2025. A meeting was scheduled for 14 April 2025 to discuss her return to work.
On 14 April 2025, the managing director cancelled the meeting due to lack of further medical information. At 4.11 pm that day, the worker sent an email formally tendering her resignation:
"I am writing to formally tender my resignation from my position at [the company], effective 14th April 2025. In accordance with the standard four-week notice period, my final working day will be 14th May 2025."
The managing director replied at 4.45 pm accepting the resignation but stating the company would "waive the notice period in good faith."
The email declared: "Your departure will therefore be effective as of 14th April 2025." The worker was asked to return her keys and uniform.
The worker responded the next day, stating she did not agree to waiving the notice period unless she was paid in lieu of notice.
She said she was fit to perform all duties during the notice period. The managing director responded that there was no updated medical evidence and no alternative duties available.
The managing director then offered: "You have indicated a desire to work the remaining four weeks of your notice. We can facilitate this through flyer distribution, however, you will need to provide an updated capacity-to-work letter confirming you are fit to undertake this task."
The worker rejected this offer as outside her role scope and returned her keys and uniform on 17 April 2025.
The managing director's final email stated that as the worker had returned her keys and uniform, she was electing not to work and concluded:
"By electing not to work, you are not entitled to any payment in lieu of notice." This communication proved crucial to the FWC's determination.
On 6 May 2025, the worker filed an application with the FWC alleging she was dismissed on 15 April 2025 contrary to the Fair Work Act because she had a temporary back injury.
The fitness company objected on two grounds: the application was made out of time, and the worker was not dismissed but had resigned.
Section 366 of the Fair Work Act requires applications be made within 21 days after dismissal took effect. These timing requirements made the question of whether dismissal occurred, and when, crucial to the worker's ability to pursue her claim.
Section 386 of the Fair Work Act provides that a person has been "dismissed" if employment has been ended "on the employer's initiative," or the person resigns but is forced to do so by the employer's conduct.
This definition became central to determining whether the worker's situation was resignation or dismissal.
The FWC noted that disputes about whether dismissal occurred must be resolved as a preliminary issue before proceeding to substantive matters.
The FWC examined the email exchange between the worker and managing director between 14 and 17 April 2025.
The decision found these communications "amounted to an attempt by [the worker] to bring her employment to an end by resignation on 14 April 2025" with a four-week notice period.
However, the managing director sought to waive the notice period, which the worker did not accept, leading to the dispute about work during the notice period.
The FWC made a crucial finding about the managing director's ultimatum regarding flyer distribution work.
The decision stated: "[The managing director's] direction was in effect an ultimatum that if [the worker] did not perform those duties the employment was terminated."
The FWC concluded: "In the circumstances, I find that [the worker's] resignation was superseded by [the managing director's] ultimatum. [The worker's] acceptance of that ultimatum brought about the termination of employment. The termination was therefore at the initiative of the employer."
The FWC's final determination stated: "These findings lead to the conclusion that [the worker] was dismissed. Her dismissal took effect on 17 April 2025, and by filing her application on 6 May 2025 she did so within 21 days of the dismissal taking effect."
Consequently, the FWC ruled: "The jurisdictional objections are dismissed, and the matter will be listed for a private conference in accordance s. 368(2) of the Act."
