Employers beware of the hasty and in the heat of the moment resignation
Overview
In the recent Fair Work Commission (FWC) decision of Tao Yang v SAL HR Services Pty Ltd [2023] FWC 1325 (4 July 2023), the FWC found that a worker who resigned immediately after a meeting to review his performance, was in fact sacked by their employer after "an unsatisfactory exchange of views conducted in a cursory and excited manner".
Background Facts
Mr Yang commenced employment with SAL on 13 September 2021 as a casual warehouse store person. The employer, SAL is a lighting wholesale business which operates nationally. It has warehouses in Sydney (along with its Head Office), Melbourne, Perth, Brisbane and Adelaide. The Adelaide operation, where the employee in these proceedings worked, is the smallest warehouse where four employees were engaged at the time of the events relevant to this application. Two of these employees, including the employee in these proceedings, were engaged directly to undertake warehouse work.
The employee argued that on 6 February 2023, the employer’s General Manager told him to the effect that he was fired after “experiencing conflict in the early morning” and that the employer “decided that this was an oral resignation.” The employee further stated that after he spoke with the General Manager (again) over the phone, he was told in effect that he was fired because he could not cooperate with his Operations Manager, who was not satisfied with the employee’s working attitude.
The employer argued that there were instances where the employee had issues with punctuality. Further, the employer argued that on 6 February 2023, the employee informed the Operations Manager that he resigned and that they accepted the voluntary resignation on that day and express posted a notice that acknowledged and confirmed the employee’s entitlements after his voluntary resignation.
It was very clear to the parties that the employment relationship had ended. Therefore, the issue before the FWC was whether the employee had voluntarily resigned or was it a hasty and in the heat of the moment resignation? Also, if it was the latter, was the employee sacked and was this unfair?
Decision and Reasoning on Appeal
When considering whether the employee was dismissed, Deputy President Hampton who presided over the matter in the FWC said that "an employer is generally able to treat a clear and unambiguous resignation as a resignation".
"However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise."
The FWC stated the following in relation to what constitutes special circumstances:
"That is, in some circumstances it may be unreasonable to assume a resignation and accept it immediately."
In other words, the employer needed to have approached the events of 6 February 2023 with a degree of caution. Whilst the employee indicated a desire to resign, this comment was made during a discussion that was very heated and highly emotional. It was on this basis that the FWC found that "this was stated during a highly emotional discussion, and it could not be said that an actual resignation was provided".
The FWC also stated that the employer should not have accepted the resignation immediately and instead have taken appropriate and reasonable steps in time.
Having determined the employee was dismissed, the FWC found it to be unfair, despite "some" of the employee’s conduct on the day in question being "not particularly serious" misconduct and his regular lateness.
"However, the concerns about the [worker] being late for work were never considered serious enough . . . to lead to any formal disciplinary action or a warning."
The FWC also considered that whilst the conduct of the employee on 6 February 2023 was not appropriate, the dismissal was harsh and disproportionate.
The FWC ordered the employer to pay the employee $4402.90 compensation, plus super.
Key Takeaways
The key takeaway for employers is to ensure that they do not action “hasty and in the heat of the moment resignations”. If actioned immediately it may be found to be a dismissal that is harsh and disproportionate.
Further, such “hasty and in the heat of the moment resignations”, require the employer to consider special circumstances and they are:
it may be unreasonable to assume a resignation and accept it immediately; and
the employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.
If you require assistance with redundancy related issues similar to this case, please contact:
Jim Babalis
Special Counsel
03 5225 5205
jbabalis@ha.legal
Sonia McCabe
Senior Associate
03 5226 8558
smccabe@ha.legal
Matthew Synoradzki
Lawyer
03 5226 8542
msynoradzki@ha.legal
