Termination of employment was not on the employer’s initiative

22 January 2019

The Fair Work Commission (FWC) recently considered whether an employee’s employment was terminated on the employer’s initiative of whether the employee had resigned.

Hall v Bordignon T/A Northern Myotherapy [2018] FWC 6703


The Applicant was employed as a receptionist at Northern Myotherapy until she was allegedly dismissed by the Respondent on 8 May 2018.

Prior to the events of the alleged dismissal, the Respondent asked his employees for their loyalty following the dissolutions of his business partnership in his myotherapy clinic in September 2017. However, the Applicant continued to maintain a friendship with the former business partner.

After becoming aware that the Applicant had posted various public messages on the former business partner’s Facebook page, the Respondent asked the Applicant to refrain from making further public comments. Despite this, on 8 May 2018 the Applicant posted a further comment on Facebook stating “I don’t care who screen shots this and send it… Congrats beautiful. Lol!!”

The Applicant’s conduct sparked a series of heated text messages, first with the Respondent’s wife and then the Respondent, including a message from the Respondent that said:

“What the f**k Sharon we spoke about this the other day yet you still wanna post not her private page her business page!!!!! I’m not calling you tonight coz I would regret what I feel like saying please don’t come in tmrw I will call you…”

To which the Applicant responded stating:

“So I will take that message as being sacked due to a comment on a wall… I don’t deserve this at all. It is way out of proportion. I need it to be settled tonight… [it] is unfair to make me wait…This is so wrong.”

The Applicant then telephoned the Respondent and the parties had a conversation during which the Applicant alleged the Respondent told her not to come back to work. The Respondent denied making the statement.

Following the telephone call on 8 May 2018, the Applicant believed that she had been dismissed and did not return to work. She also posted a message on an internal workplace dashboard advising clients and others that “… I will no longer be working at [Northern Myotherapy]. I have enjoyed my time with you all and wish you the best of everything”.

Subsequently, the Respondent wrote to the Applicant accepting the Applicant’s internal message as confirmation of her resignation.

The Decision

The key issue before the FWC for determination was whether the Applicant was dismissed on the initiative of the Respondent and therefore protected from unfair dismissal.

Deputy President Gostencnik considered the meaning of ‘dismissed’ as defined in section 386 of the Fair Work Act 2009 (Cth) (FW Act) and found that the termination of employment on the employer’s initiative may occur by clear words or conduct by an employer directed to an employee that the employee’s employment is to end or has ended.

The Deputy President did not accept that the Respondent had dismissed the Applicant during the telephone conversation. The evidence was that it was the Applicant who first raised the issue of dismissal in response to the text messages exchanged on 8 May 2018. Further, it was “plain that well before the telephone conversation the Applicant had in mind that she was dismissed”, although the Deputy President could not draw such a conclusion from the Respondent’s text message.

In the Deputy President’s view, the Applicant’s memory of the telephone conversation was affected by her view of the effect of the earlier text messages.

Ultimately, the Deputy President held that the Applicant had not been dismissed within the meaning of the FW Act and dismissed the application.

Advice for Employers

Employers should ensure that serious employment matters are addressed with employees in person and preferably confirmed in writing.

Although, in this case, the employee was found to have resigned, in circumstances where an employee forms the view that their employment has been terminated following a heated exchange, and communicates the same, employers should swiftly address any misunderstanding in order to avoid a similar situation.

If you would like advice or assistance with any of the above issues, please contact a member of our Workplace Relations team.