Facts of case

The employee was a dance instructor from the Philippines on a 482 work visa. The latter contributed to the finding that his dismissal was unfair. It was his turn to take out the rubbish, but as it was after the end of his shift time he collected it and said he would take it out when he returned the next day (a common practice). He had a history of raising concerns about work with management. 

A co-worker took the rubbish out, but when the Manager/Business Owner found out, he directed the employee to take the next day’s rubbish out. The employee replied that he would do so if his other work duties were shortened so that he could take the rubbish out before the end time of his shift (ie within paid work hours). 

The Manager then allegedly said that the employee had two options: (1) to remain employed but not raise work concerns in front of others, or (2) go home and have his employment terminated immediately. The Manager claimed that the employee replied “option 2”. He then notified the Accounts section to say that the employee had terminated his employment and 482 visa. 

The employee replied that he did not wish to resign but was told to do so. However, the employer followed with a formal letter of termination setting out multiple reasons for dismissal related to job performance and conduct.

 

Decision

The FWC rejected the employer’s claim that the employee had voluntarily resigned, noting that its final letter of termination contradicted that by listing several reasons why it believed dismissal was justified. That letter was also irrelevant because termination of employment had already occurred.

The FWC also found that any decision made by the employee was made on-the-spot and while in a state of emotional stress and confusion, and did not convey a genuine intention to resign. The subsequent correspondence from both parties demonstrated this. His employment therefore ended because of the Manager’s actions.

Not taking rubbish out until the next day was a trivial matter that did not justify dismissal, and in any case it was common practice at the workplace.

The employee was awarded almost $24,500 to cover an estimate of six months’ further employment (until his work visa expired) if he had not been unfairly dismissed.

 

What this means for employers

“Heat of the moment” resignations by employees who are under stress at the time must be treated very carefully. It may be tempting to immediately accept it if the employee is one you don’t particularly want to keep. However, it is advisable to allow time for both parties to “cool down” and reflect on the situation, then ask the employee again what he/she wants to do. Often, the employee will want to retract the “resignation”.

In this case, the employer breached the Small Business Fair Dismissal Code.

If you act opportunistically and in haste, and the employee later changes his/her mind, a claim of unfair dismissal may be the outcome. 

Also avoid ultimatums like “do this or resign”, for the same reasons.


Read the judgment

Mr Neil Jon Lungay Colmenares v Caretodance Pty Ltd [2024] FWC 3580 (24 December 2024)