Dismissal must occur to trigger an unfair dismissal remedy

Dismissal must occur to trigger an unfair dismissal remedy

One of the basic principles underlying unfair dismissal legislation is that a dismissal must have actually taken place. If an employment relationship ceases, but no dismissal has occurred, an applicant will have no course of action.

This principle was recently addressed in a case involving an employee returning from maternity leave. Due to her circumstances and the impact of COVID-19, she had agreed to return to work two days per week, each Monday and Tuesday.

In the first two weeks of July 2021, she failed to attend work due to separate medical conditions. In the third week, on 12 July 2021, she texted her supervisor asking to arrange a meeting to discuss some concerns she had at work. Her supervisor responded and suggested meeting her that day prior to the commencement of her shift. However, she did not respond nor attend for her shift. Later that day, her supervisor texted her, suggesting they meet the following day. After initially accepting the invitation, she responded that she would like the meeting rescheduled to another time.

On 13 July 2021, she contacted the company’s managing director, claiming she was not comfortable going to work as she was being bullied by her supervisor. He responded, “Okay if you are not feeling comfortable to come to work, don’t come”. He then asked her to contact him again, but she replied in part, “I will call you back when I’m better”. The following day she rang him but, during the conversation, became upset and said she would need to call him back. However, she didn’t and instead contacted the Fair Work Ombudsman.

She failed to attend work for her next two rostered shifts on 19 and 20 July 2021. Her supervisor emailed her with an attached warning letter regarding her non-attendance. She replied, claiming that she had been ‘basically fired’ by the managing director in reference to their first conversation when he suggested she not attend work.

On 22 July 2021, her supervisor wrote to her and suggested they meet, and on the same day, the managing director wrote to her suggesting she misunderstood his meaning and also encouraged her to contact him. She did not respond to either email. The managing director took it upon himself to contact her on 27 July 2021, and when he asked her intentions, she replied, “No, I’m not coming back. Because of everything that’s happened”.

In dismissing the application, Commissioner Sandra McKinnon commented, “The evidence does not support a finding that (she) was dismissed…A reasonable person would not understand either of the statements made by the (managing director) as clearly communicating the fact of dismissal to (her), even if that is how (she) understood them.”

The Commissioner acknowledged the steps taken by the company in trying to resolve the situation. Ultimately, she determined,

“it was (the employee) who acted to end the employment relationship by advising the (managing director) on 27 July 2021 that she was not coming back to work. By these words, (she) resigned from her employment. The evidence does not establish that she was forced to resign by any conduct, or course of action, of That’s Amore Cheese”.

Consequently, the Commissioner ruled that as the employee had not been dismissed, her application for unfair dismissal could not proceed.

MK v That’s Amore Cheese Pty Ltd (U2021/6957) 11 September 2021

For queries about absent employees, performance issues, or any other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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