Termination at the initiative of the employer 25/5/99

Cases

Termination at the initiative of the employer 25/5/99

Expressing a possible intention to resign conditional on certain factors is not the same as submitting a resignation.

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Expressing a possible intention to resign conditional on certain factors is not the same as submitting a resignation.

The employee had expressed to a fellow employee that her husband may be transferred inter-state and that she may be resigning. This employee passed this information on to the employer in discussions about the future of the company. The employee was asked about her intentions during a meeting in September 1997 where she stated that her resignation was dependent on her husband being transferred, and if he was, she would be leaving at the end of February of the following year (Cuerton v Action Hi-Tech Australia Pty Limited; Print R0082, [1998] 1515 IRCommA).

The employer took this intention as if the employee's resignation had been submitted and in October 1997 employed two new staff members to move into the employee's position. The employee was also given the responsibility of training the new staff members.

At a meeting with the employer in December 1997, the employee stated it was unlikely that her husband would accept the transfer so she would not be leaving. The employer still maintained the employee had resigned.

At a meeting on 26 February 1998 the employer stated that the following day was the end of the month and that her employment would be terminated from then. The employer took the employee's stated intention in September 1997 as a verbal resignation.

The Commission held that the employer was wrong in misinterpreting the employee's intention to resign as an actual resignation. However, the employee should have realised when she was training the two new staff members to do her job that there was an expectation by the employer that she would be leaving her employment.

The Commission found that it was not open to the employer, on the evidence, to believe that a resignation had taken place.

Further, the Commission stated:

"The circumstances of [the employee's] termination of work were harsh and unreasonable. However, she contributed in some ways to the termination of her employment by not confronting the employer with a direct, unambiguous statement that she was not leaving. Even if I accepted entirely [the employer's] account that [the employee] stated in February that she was still leaving, if he had been provided with a written statement from [the employee], he would have not been in a position where he could be adamant that she was leaving.

"However, in considering whether a 'fair go all round' was provided to the [employee], I have concluded that there was not. What occurred to end [the employee's] employment was, taking all the circumstances into account, harsh and unreasonable."

It was found that the termination of employment was at the initiative of the employer and not as a result of the employee's resignation.

The Commission ordered the employer to pay 10 weeks' wages to the employee as compensation for loss of earnings and for the unfair and unreasonable termination of her employment.

 

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