The Commission has considered the subjective intention of an employee when considering whether a resignation or dismissal occurred.

Background

The applicant was employed as a massage therapist, paid on a commission basis. On 17 June 2021, a dispute arose between the applicant and the respondent regarding the allocation of customers to the applicant. The applicant began to feel unwell and left the workplace. The applicant stated to the respondent words to the effect that she had no will to work or no will to do any more.

The applicant did not attend work on 18 June 2021 and provided a medical certificate by text message to her employer, certifying her unfit for work for a period of one week. On 19 June 2021, the respondent sent a text message to the applicant regarding the incident that had occurred. The message finalised payments and alluded to consequences if the applicant did not "go quietly".

The applicant initially made a claim to the Fair Work Commission. After receiving legal advice, the applicant made a claim in the Commission, one month out of time.

Contentions

The applicant submitted that the text message received on 19 June 2021 constituted the respondent terminating her employment.

The respondent submitted that when the applicant left on 17 June 2021, he regarded it as her resignation. The respondent did not open the attachment due to fear of an electronic scam.  As he believed the applicant had resigned, he did not think there was any need to open the attachment.

Findings

The Commission considered whether the applicant had been dismissed, or whether the employment had ended on her own will. The Commission considered closely the conduct and words of the applicant on 17 June 2021, and the text messages exchanged in the following days.   

The Commission noted that the applicant had in the past left work early, indicating that she may not have intended to resign. The Commission considered that it would be expected that the applicant would say something in parting to her colleagues if she did intend it to be her last day.  As the applicant was unwell, the Commission also determined that it was likely the applicant’s left the workplace to recover and seek medical treatment. Finally, the Commission noted that the applicant had provided a medical certificate for one week, and had she intended to leave her employment, there would be no reason for her to do so. 

The Commission noted that the text message exchange and the evidence generally, was translated through a Mandarin interpreter. The Commission noted that it was not possible for the Commission to attribute a precise meaning to the Mandarin words the applicant spoke on 17 June 2021 as they only approximate the English words "no will do anymore".  Consideration of subjective intention was necessary, in light of the fact that the Commission was considering the words as interpreted, rather than as they were spoken. The Commission considered that even an objective view of these words would fall short of being a decisive act to end an employment relationship by the applicant. 

The Commission determined that the applicant did not resign, and the employer’s text message on 19 June 2021 signified the end of the employment relationship. As there was no valid reason for the dismissal, the dismissal was harsh, oppressive and unfair. Considering the principles in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51, the Commission granted the applicant an extension of time. The Commission ordered the respondent pay the applicant compensation for injury in the sum of $1,500 and for loss in the sum of $2,854.16.

The decision can be read here.