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When is a resignation not a resignation?

After a worker walked off the job saying he was ‘out’ and ‘done’, the Fair Work Commission (FWC) decided he did not resign but was sacked. Read why the FWC found his ‘heat of the moment’ action did not show an intention to resign.

04 Apr 2024

Gaby Grammeno

Contributor

Work uniform dispute triggered walking off the job

The worker was employed on a casual basis as a supermarket trolley collector. His employer supplied workers to a business providing services to a major supermarket in Sydney.

At work, he was required to wear a uniform consisting of a ‘hi-vis’ collared polyester shirt with thick thread and a business logo imprinted on the back. In the cooler months, he had no problem with it, but as the weather warmed, he began experiencing health issues because of the uniform, particularly when he was working in less well-ventilated underground car parks.

He said the shirt material was hot and uncomfortable on his skin, and that the uniform made him sweat uncontrollably and feel dizzy, dehydrated and faint. He claimed he’d lost 10kg in a month of hot working conditions.

He’d raised his health and safety concerns with two members of the management team, but was told the company would not care about his complaint and would not accommodate his request, even after the worker offered to pay for a more breathable form of the uniform, including printing and laminating the company logos onto it. The human resources manager said he would get back to him and did not.

The worker began to wear his own shirt – thinner, made of a cooler fabric but still ‘hi-vis’ – to work. On 7 January 2024 he was approached by a manager who came over and gave him a new shirt. The manager was ‘quite upset’ and spoke to him in a frustrated, heightened tone. The worker refused to change out of his more comfortable shirt, but the way the manager spoke to him made him angry and frustrated.

The manager told him that if he didn’t wear the uniform he had to leave the site. He decided to leave the site, saying something along the lines of ‘I’m out, I’m done’ and left.

He said later he did not intend to resign but had left because he was angry, and it was one of the choices given.

He later contacted his HR representative, very worried he was going to be fired, and asked what was going on. The worker thought the HR rep seemed to understand the situation, saying he’d heard other complaints about the uniform, but the following day, the HR rep told him that if he couldn’t wear the shirt during the summer months, he couldn’t work the job. The rep said he’d ‘been asked to let [the worker] go’.

The worker had no further contact with the employer apart from trying to get a separation certificate so that he could access Centrelink benefits, on the understanding he’d been dismissed.

However, the employer took the position that the worker had not been dismissed – he’d resigned rather than accepting a lawful direction from his employer.

The worker applied to the Fair Work Commission to deal with the dispute, alleging he’d been dismissed and the dismissal contravened the general protections of the Fair Work Act 2009.

In the Commission

After considering the evidence, FWC Deputy President Thomas Roberts accepted the worker’s submission that on 7 January 2024, when he said he was ‘out’ and ‘done’, he was reacting with frustration because he’d tried to resolve the uniform issue, but without success.

Deputy President Roberts formed the view that the worker’s words should have been reasonably understood as meaning he did not want to work his casual shift on that day because of the problem with the uniform, not that he was resigning his employment.

The fact that the worker rang the HR manager soon after to explain the situation and ‘ask what was going on’ should have conveyed to the employer that the worker had not intended to resign but just wanted a resolution of his concern.

The termination came on 8 January, when the HR manager told the worker that if he could not wear the uniform, he could not do the job. The HR manager’s words resulted directly or consequentially in the termination of the employment relationship. Had he not said this to the worker, the employment relationship would have continued.

The Commission found that the worker’s employment was brought to an end on the employer’s initiative. Deputy President Roberts dismissed the employer’s objection and ordered that the matter be relisted for conference at a later date.

What it means for employers

Depending on the circumstances, words uttered ‘in the heat of the moment’ may not amount to an unequivocal resignation.

In a dispute over work uniforms, the comfort and wellbeing of workers should be taken into account, including any potential contribution to heat stress.