By Mike Toten Freelance Writer

An employer’s objection to a general protections claim has been rejected, with the Fair Work Commission (FWC) ruling that the employer dismissed her during her resignation notice period. The employer had claimed that the employee repudiated her contract. The employee claimed that she was forced to resign and then underpaid during her notice period. This ruling allows the employee’s claim to proceed to a conference. 

 

Facts of case 

The employee claimed that she was mistreated by her employer, a law firm, including bullying, which exacerbated a pre-existing mental health condition. 

One day she called in sick, with a medical certificate stating she was unfit for work for the next week.  But during that week she resigned, giving four weeks’ notice and stating that it was unlikely she would be able to return to work during that time, but would update further. 

Her salary package had included bursary sponsorship of 40% of the cost of her daughter’s education “for the duration of her enrolment at the school. The parties disagreed over whether it was dependent on her continuing employment, and the FWC said that a court would have to decide that matter.  

On the last day of her sick leave, the employee resigned and returned various items of employer property, making a derogatory comment about the law firm and its management to its Accountant. The Accountant then advised the firm’s partners that she thought the employee had resigned. The partners concluded that she had repudiated her employment contract. However, the employee then lodged another medical certificate covering absence from work for a further two weeks.  

The employee then asked why she had not been paid out. The employer responded with a claim that returning the firm’s property showed that she had no intention of working out her notice period and had therefore repudiated her contract. It claimed that this occurred the day her first medical certificate expired. It then claimed that because she had not given the notice period required by the relevant award, it was entitled to deduct four weeks’ pay from her payout (The FWC said that was incorrect, but the dispute over pay had not forced the employee to resign).  

The employee claimed that the employer property she returned did not prevent her from continuing to work, eg she could still gain access to the office and work using her own desktop PC. She claimed that her contract required her to return the property if she was on extended sick leave, and in any case she did not expect to be able to return to work before her notice period ended. 

She also claimed that her second medical certificate and advice that she would “update” the employer with her progress indicated that she intended to continue her employment until the end of her notice period. She claimed she was forced to resign and lodged a general protections claim. 

 

Decision 

The FWC found that the law firm had dismissed the employee, and rejected its jurisdictional objection to the general protections claim. However, it said that the employee was not forced to resign, but chose to do so for mental health and family reasons. 

It found that lodging the second medical certificate and advising that she would provide updates of her progress refuted a claim that she had repudiated her contract, and the employer should then have taken steps to ask her why she returned the property before making any decision. The employee’s actions indicated that she had taken a temporary period of sick leave and intended/hoped to resume work, so the employer erred by interpreting her actions as repudiation of her contract and dismissing her before her notice period ended.  

The FWC referred the dispute over the employee’s pay to the Fair Work Ombudsman, as it suggested the employer may have breached the relevant award. 

 

What this means for employers 

It is usually very difficult for an employer to prove that an employee has repudiated his/her employment contract. It is necessary to make every effort to contact the employee and clarify whether he/she intends to return to work – which it appears this employer could easily have done – and only make a decision if there has clear evidence that the employee has left the job (eg working elsewhere or travelling, or if the employee confirms it).  

It appears that this employer was keen to get rid of the employee and perhaps save some money on the termination payout and bursary sponsorship, but a more diligent and cautious reaction to the return of employer property would have avoided the claim it now has to defend. 

 

Read the judgment 

Renee Passmore v The Trustee for The CBC Lawyers Unit Trust, Sandra Clive [2025] FWC 575 (15 April 2025)