Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (2018) FWC 2014 9 March 2018, a decision of Commissioner Cambridge of the Fair Work Commission
Section 386 of the Fair Work Act defines dismissal and one of the circumstances so defined is:
"the person's employment with his or her employer has been terminated on the employer's initiative" [our underlining].
One of the circumstances which can fall within this concept (which does not involve an "overt" termination by the employer) is the "heat of the moment" resignation. This is the subject of our article.
On 16 November 2017, the employee wrote the initial version of her resignation letter while she was waiting to be called into a disciplinary meeting. That letter was later amended during the meeting in that the letter was amended from providing one month's notice to having immediate effect. During the disciplinary meeting, the applicant was "upset and emotional to the point of crying".
On 17 November 2017, a letter was sent by the employer advising of confirmation of the resignation provided the previous day.
On 18 November 2017, the employee attended at the employer's premises for the purpose of seeking to "withdraw her resignation", which was rejected.
The Commissioner found that the applicant "was dismissed on the employer's initiative and in satisfaction of the meaning of dismissed" provided by the section referred to earlier.
The general principle set out in relation to "heat of the moment" resignations, is:
"Because of special circumstances and/or a combination of other factors, it was unreasonable for the employer to assume that the resignation was genuinely intended."
In these circumstances, if an employer accepts the resignation, and acts upon it, it may be held to have been legally ineffective. The action of accepting it may establish that the employment was terminated on the employer's initiative in satisfaction of the terms of the section set out above.
Here, critical factors referred to by the Commissioner were:
"the irrationality of the employee's behaviour, her impulsive preparedness to resign with immediate effect and that the decision was conveyed by the scribbling out of that part of the resignation which contained words that indicated that she was providing one month's notice."
In addition, the Commissioner observed:
"It is also relevant to note that the irrational behaviour of the applicant can, in part, be attributed to ethnic and cultural factors, associated with the shame that allegations which she thought involved theft would bring upon her."
Accordingly, the question of whether the dismissal was unfair and, if so, what should flow from that, was legitimately before the Commission. An appeal has been lodged, but (whatever the outcome) the case remains an important reminder of principle.
Lessons for employers
In such circumstances an employer should:
- ensure that the employee is given time for consideration before the employer accepts the resignation
- recommend that the employee seek independent advice
- "hasten slowly".
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