Accepting a resignation from a distressed employee may be a dismissal

Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli (2018) FWC 2014 9 March 2018, a decision of Commissioner Cambridge of the Fair Work Commission

Statutory context

Section 386 of the Fair Work Act defines dismissal and one of the circumstances so defined is:

"the person's employment with his or her employer has been terminated on the employer's initiative" [our underlining].

One of the circumstances which can fall within this concept (which does not involve an "overt" termination by the employer) is the "heat of the moment" resignation. This is the subject of our article.

Relevant facts

On 16 November 2017, the employee wrote the initial version of her resignation letter while she was waiting to be called into a disciplinary meeting. That letter was later amended during the meeting in that the letter was amended from providing one month's notice to having immediate effect. During the disciplinary meeting, the applicant was "upset and emotional to the