Confused ‘resignations’ tripping up employees and employers

Numerous recent decisions from the Fair Work Commission (FWC) have highlighted the importance of having clarity over cessation of employment, with employers and employees equally at risk of disappointment where there is conjecture about how the employment relationship ended.

Sizeable compensation for constructively dismissed “difficult” worker

Early in November, Deputy President Slevin awarded an employee who resigned from Services Australia in March 2025, over $30,000 compensation after finding his resignation had been tendered whilst he was in “a state of emotional distress” and his employer’s subsequent acceptance of it amounted to an unfair dismissal.

Although the employee’s doctor had confirmed the employee was in a fit mental state to be resigning, Deputy President Slevin held that the employer should have recognised from extensive communications sent by the employee that he was “not well” and that his condition was not improving. Despite conceding that the employee was “difficult to deal with” in the months prior to his termination and acknowledging that, “the officers at Services Australia did their best to deal with his irrational behaviour”, the Deputy President concluded the employee should have been “given space to recover” before the employer discussed with him a potential return to work.

The fact the employer repeatedly engaged with the employee about his employment whilst he was absent without any income (he had exhausted all paid leave entitlements and had a worker’s compensation claim pending) and had been assessed by a supervisor as being in a “very dark place” at the time, contributed to the Deputy President’s finding that the employee had “no effective or real choice but to resign” when he did. Whilst Deputy President Slevin noted that, “there can be no criticism of (sic) individually of any of the managers or other staff who dealt with [the employee] during this period”, he labelled the events preceding the employee’s (forced) resignation harsh.

Finding the termination occurred at the initiative of the employer and concluding the dismissal was unfair, the employee was awarded $33,348.62 (gross), plus superannuation.

Wilson (nee Miller) v Services Australia [2025] FWC 3328 (5 November 2025)

Resignations by disgruntled employees not forced

In stark contrast to the above case, in October, Deputy President Lake found a Care Consultant for a home care provider concluded her employment voluntarily in May whilst on a period of personal leave, which followed the employee having been advised that a client’s power of attorney had requested she be removed from working with the client. The Care Consultant had also taken issue with one of the business owners sharing her plans to purchase a home and “interrogating” her about her past employment, interactions which occurred approximately a year into the Care Consultant’s service with the organisation. In addition, the Care Consultant claimed her role had been advertised in early-April 2025, indicating her employer’s desire to replace her.

Deputy President Lake was unable to substantiate the Care Consultant’s “vague” assertions of bullying, noting that the employee “caused or contributed to the interpersonal issues” she purportedly experienced with one of the business owners. He further rejected the employee’s claim that the employer failed to properly support her when the client’s power of attorney requested her removal, or that they had actively sought to replace her position, accepting instead that the organisation had recruited for additional staff.

Whilst the evidence confirmed the Care Consultant was issued a directive following the request of the client’s power of attorney, Deputy President Lake identified this fell well short of constituting a “threat of termination”, notwithstanding her failure to comply with a lawful and reasonable managerial direction may have been deemed serious misconduct and provide grounds for summary dismissal.

Having determined the Care Consultant’s resignation was voluntary and not forced, Deputy President Lake dismissed her general protections dismissal application.

Mcqueen v Rose Life Care Wide Bay Pty Ltd [2025] FWC 2875 (23 October 2025)

Similarly, late last month, Deputy President Cross dismissed the general protections dismissal application of an administrative employee for an early childhood provider after finding she had voluntarily resigned during a coaching meeting.

Confusion had ensued after the employer had issued correspondence confirming acceptance of the employee’s resignation, as tendered in a coaching meeting of 25 July 2025. The employee initially debated the fairness of the feedback she had received and then, over a week later, sought to dispute that she had resigned.

Deputy President Cross determined that “some material statement must have been made by [the employee] during the meeting, that was indicative of a notice of resignation” and assessed that this was offered of her own volition. In coming to this conclusion, the Deputy President observed the meeting of 25 July had been misconstrued by the employee when she labelled it an “ambush” and a “performance meeting”, finding instead the employer held “genuine” reasons for wanting to address “some behaviour related concerns”, rejecting any suggestion the meeting had been designed to “compel [the employee] to resign”.

Lam v Weldon Children’s Services [2025] FWC 3494 (25 November 2025)

Casual conversion request constituted voluntary resignation

The disappointment of a long-serving employee over the manner in which his employment relationship of 12 years came to an end, has been further compounded by the FWC, with Deputy President Beaumont dismissing his general protections dismissal application late last month.

The permanent worker had notified his community services employer of his desire to seek conversion to a casual engagement, vaguely noting he regarded this to constitute a request for flexible working arrangements on the basis it would support his parental responsibilities to his school aged child and be in the best interest of his health, which had started to “show signs of strain”. The employee pursued conversion despite expressing disquiet that his employer made clear that casual employees were required to identify at least two weekdays of availability; that limited weekend work would be made available; that accrual of entitlements would cease; and his conversion from permanent would be subject to him providing four weeks’ notice. When his request to conclude his permanent engagement was accepted without any desirable casual shifts being available to him, the employee sought to argue his resignation had been “forced” and “given under pressure”.

Deputy President Beaumont rejected the employee’s claims in both respects, finding that the employee’s communications regarding resignation from his permanent position had been “cogent”, and notwithstanding a “level of frustration” that had been directed at his employer, could not have been said to have been delivered in “the heat of the moment”. In addition, the Deputy President was not persuaded that the employer’s actions had in any way forced the employee’s decision, observing that it was the employee who introduced and pursued the notion of resignation; the employer had waited two days before confirming acceptance of his written resignation; and, that there had been other options available to the employee (other than resignation) had he wanted to dispute the employer’s response to his request for conversion, which he loosely regarded to constitute a request for flexible working arrangements.

The Deputy President subsequently concluded the employee had not been dismissed and instead resigned because of “a decision he exercised and a choice he made, voluntarily”.

Adhikari v Karingal St Laurence Limited [2025] FWC 3537 (24 November 2025)

Acceptance of resignation threats actually a dismissal

Most recently, a payroll employee has had initial success in winning the right to pursue her general protections dismissal application, with Commissioner Matheson ruling the worker was dismissed when her employer accepted threats to resign that she had made during an outburst the day prior.

In July, the employee had departed from accepted protocol and accessed a payroll file to ascertain the amount of bonus she was slated to receive. After becoming incensed that a less experienced co-worker had been assigned a higher payment, the employee “reacted poorly” and confronted both her co-worker and immediate supervisors, making repeated statements that if she did not receive the same level of remuneration as her co-worker, she would have no option but to resign.

By the time the matter had escalated to the employer’s chief decision maker the next day, the employee’s “aggressive” conduct towards other staff had been assessed as “not acceptable”, and the employee was advised, “in the present circumstances we will accept your resignation as your conduct [of yesterday] is totally unacceptable”. The employer later argued that the employee did not seek to dispute their acceptance of her resignation, constituting further evidence she was not dismissed.

However, Commissioner Matheson observed that the employee “merely threatened to resign if her demands were not met” (which involved the employer discussing the pay disparity with her and agreeing to remunerate her at a higher level), and ruled the employer had concluded the employment relationship at their initiative after making findings that her behaviour the day before had been “totally unacceptable”.

The employee is now eligible to pursue her general protections application though it remains unclear what general protections grounds she claims have been breached, whilst the level of further success she is likely to have in pursuit of her claim may be questionable. 

Sheets v Drilling Services International Pty Ltd T/A Acc Corporate [2025] FWC 2783 (25 November 2025)