An employee who left work due to a panic attack was unfairly dismissed, after their employer misinterpreted the exit as intent to resign. The Fair Work Commission found that the employee was dismissed by the employer, and that dismissal was harsh, unjust and unreasonable, even in circumstances where the employment relationship was substantially strained and the employer had significant concerns with the employee's work performance and attitude prior to the dismissal.
In Mr A v The Respondent  FWC 8631, the Applicant
had worked for the Respondent for approximately a year when, on 14
July 2016, he advised he was leaving, without providing an
explanation for his departure. The Applicant took various
belongings with him upon his departure. On 19 July 2016, after
failed attempts to contact the Applicant, the Respondent emailed
the Applicant confirming his exit had been interpreted as a
voluntary termination of employment and requested all company items
The Applicant instituted proceedings pursuant to section 394 of
Fair Work Act 2009 ("the Act"), which provides
relief to an employee who has been dismissed, if that dismissal is
deemed harsh, unjust or unreasonable. Pursuant to section 386 of
the Act, an employee is dismissed if the employment has been
terminated on the employer's initiative, or the person was
forced to resign their employment due to conduct engaged in by the
The Applicant alleged his employment had been terminated in a
way that was inconsistent with the Small Business Fair Dismissal
Code and that the termination was harsh, unjust and unreasonable.
Further, the Applicant submitted his exit should not be viewed as a
resignation in circumstances where he left due to a panic attack
that he had perceived as "an immediate threat to his health
and safety". However, the Respondent submitted that a
deterioration of the Applicant's attitude and work performance
over a number of months, in addition to advice received from an
employer association and the Fair Work Ombudsman, lead to a
conclusion that the Applicant had left the employment of his own
The Fair Work Commission noted the Applicant's evidence that
increased unreasonable demands had been made of him in the period
leading up to the dismissal and that this had exacerbated mental
health issues of which the Respondent had previously aware. The
Respondent gave evidence that he could not recall being made aware
of any mental health issues.
In deciding whether the dismissal was unfair, the Fair Work
Commission held it was first necessary to determine whether a
dismissal had actually taken place, noting a termination at the
employer's initiative is an "essential characteristic of
to the concept of dismissal". In its decision, the Fair Work
Commission referred to the case of O'Meara v Stanley Works
Pty Ltd1, where it was held that determining whether a
termination was at the initiative of the employer required an
"objective analysis of the employer's conduct" to
determine whether it was likely to result in resignation or was of
such a nature that the employee had no choice but to resign. It was
held the issue therefore turned on whether the Applicant actually
resigned when he left the workplace on 14 July 2016.
The Commission highlighted the significant difficulties in
relation to a lack of evidence and noted that there would have been
"absolutely no basis for doubt" about the Applicant's
continued employment if he had advised the Respondent he was
leaving work to go to the doctor. It was noted that further doubt
arose due to the Respondent being unable to contact the Applicant
following his exit from the workplace. Accordingly, it was held
there was not sufficient evidence that the Applicant had resigned,
and the Respondent had in fact made a decision in relation to the
Applicant's employment by way of their email on 19 July 2016.
As such, the termination was at the initiative of the employer and
a dismissal had occurred.
In accordance with section 387 of the Act, the Fair Work
Commission then found there had not been a valid reason for
dismissal. In consideration of attempts to contact the Claimant
after his exit, it was held the Respondent had provided an
opportunity for the Applicant to respond to the proposed
termination. The Fair Work Commission also identified the nature of
the Respondent's company, noting the absence of dedicated human
resource management expertise as a mitigating factor towards any
findings of unfairness.
The Commission held that while the "soured relationship" between the parties could have contributed to a conclusion that the Applicant had in fact resigned, there was no actual evidence to suggest the Applicant had resigned. As such, the Fair Work Commission held the termination of the Applicant's employment was harsh, unjust and unreasonable in circumstances where the dismissal was based on inference rather than facts. The Fair Work Commission considered that even if the Applicant had returned to work, evidence of a "significant suite of issues" was not conducive to on-going employment. Accordingly, the Applicant was awarded two week's pay in compensation.
The Fair Work Commission considered the matter could have concluded differently if the Applicant had been more "fulsome" in his reasons for departure, or more willing to communicate with the Respondent following his departure. This highlights the importance of communication in employment relationships. This case also emphasises the need for employers to exercise caution in circumstances where there is uncertainty as to whether an employee has resigned in order to protect themselves from unfair dismissal claims.
1 (2006) 58 AILR 100
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