By Mike Toten Freelance Writer

After an employee submitted his resignation, the parties agreed to change his work arrangements and he continued as an employee. But shortly after, there was a dispute about absence from work and the employer told him that it was “accepting his resignation”. The Fair Work Commission (FWC) has now ruled that the employer could not do that, and in fact it had dismissed the employee.

Facts of case

The employee of eight years had resigned, but the parties then agreed that he would continue employment with a flexible arrangement that allowed him to take every second Friday off work for family/carer purposes. 

One day a few months later he left work early because he was sick. The employer responded that his day off the next day (Friday) was cancelled, and he needed to come to work. When he replied that he would not be coming to work because he had to care for his daughter, the employer said that it would now accept his resignation. It followed up with an email confirming termination of employment and advising final pay, etc arrangements. 

After the flexible arrangements commenced, the employee had several absences from work, but there was no evidence he was not entitled to them (most were leave entitlements). The employee had also indicated that he would resign (again) at the end of the year due to planned relocation.

The employee lodged a general protections claim, alleging he was dismissed for exercising a workplace right (family/carer responsibilities) during a temporary absence from work due to illness.

Decision

The FWC said that the email was clearly worded as a dismissal, not an acceptance of the earlier resignation.

It found that both parties had clearly agreed that the employee’s earlier resignation would not proceed. Therefore, the employer was not entitled to unilaterally revive it, and its termination letter was a clearly-worded dismissal. Therefore, his general protections claim could proceed.

What this means for employers

Once a resignation has been withdrawn, or the employer decides not to accept it, the employer cannot unilaterally decide later that it will accept it – it can only do so if the employee submits it again.

If you encounter a situation where a “resignation” does not occur because the parties agree to continue the employment contract, it is recommended that you document and clearly state what has happened, and what the new work arrangements are.

Read the judgment

Mr Jarick Robati v Mr Peter Kaptein & Stealth Joinery Pty Ltd - [2024] FWC 2085 | Fair Work Commission