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It's not over 'til the employer says it's over

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Written by Nicole Keijzer.

An employee's mistaken belief that their employment had been terminated could not transform the resulting termination of employment into one that occurred at the initiative of their employer.

Key impacts

  • Disciplinary conversations, which may result in termination of employment, should (where possible) be undertaken face-to-face. Text messages and phone calls where tone and context can be misunderstood should be avoided, particularly if they are sent or take place in the heat of the moment.
  • Employers should ensure communications engaged in with employees are respectful and clear.

Facts

Sharon Hall was employed by Michael Borgignon as a receptionist at Northern Myotherapy, until purportedly "being dismissed" on or around 8 May 2018. The parties agreed they had a "friendly and professional" relationship prior to the events of the alleged dismissal, which arose following Hall's public support of Borgignon's former business partner. Borgignon said he only asked for loyalty from his employees following the dissolution with his business partner. In spite of this, Hall continued to publicly congratulate Borgignon's former business partner on her business' Facebook account.

Hall and Borgignon engaged in a series of heated text messages in relation to Hall's conduct after Borgignon became aware of Hall's messages on 8 May 2018. During a subsequent phone conversation with Borgignon, Hall contended her employment was terminated when she was told "not to come back to work". Borgignon denied making that statement and said he was "shocked" when Hall did not return to work the next day and had posted a message on an internal electronic message board advising her colleagues that she would not be returning to work. In the note, Hall said "just letting you know I will no longer be working at [Northern Myotherapy]. I have enjoyed my time with you all and wish you the best of everything".

The question before the Fair Work Commission was whether Hall had been "dismissed" at Borgignon's initiative and therefore eligible to make an unfair dismissal claim.

Outcome

The Commission considered the meaning of "dismissed" by reference to section 386 of the Fair Work Act 2009  and found that a dismissal occurs by the clear words or conduct of an employer directed to an employee that the employee's employment is to end or has ended. The Commission focused on the question of whether it could be said if, "the employment relationship (would) have remained on foot but for the employer's act?"

In consideration of this point, the Commission found that although Hall did not return to work on the erroneous belief she had been dismissed, it did not result in the termination of her employment being at Borgignon's initiative. The Commission held it was more likely than not that Hall had already decided she had been dismissed by the earlier text messages from Borgignon notwithstanding that the Commission considered no such conclusion could be reasonably drawn from Borgignon's messages.

The Commission held that Hall's recollection of the subsequent phone conversation was affected by her view of the effect of the prior text messages. Although the Commission acknowledged the "child-like" behaviour of Borgignon's text messages, it was found that they did not have the effect of retrospectively terminating Hall's employment. In rejecting Hall's argument, the Commission found Hall's employment ended because she did not return to work and she told others her employment had ended. Consequently, Hall was not dismissed within the meaning of the Fair Work Act 2009 at the initiative of her employer either on 8 May 2019 or at any time after.

 
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