In this week’s blog we take a look at a recent employment law case in which an employee’s resignation was found to be not legally effective as it was given when the employee was in a state of emotional stress or mental confusion. The consequence was that the employee was found to have been dismissed rather than to have resigned, leaving the door open for a claim against the employer.

Dwayne Anthony Brunné v David Mansart [2024] FWC 579

This matter was heard by Deputy President Wright (DP Wright) of the Fair Work Commission (FWC) pursuant to an application made by Mr Dwayne Anthony Brunné (Mr Brunné). Mr Brunné brought the application alleging that he had been dismissed from his employment with Mr David Mansart (Mr Mansart) in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (FW Act).  Mr Mansart objected to the application on the grounds that Mr Brunné had not been “dismissed” within the meaning of the FW Act as he had resigned from his employment. 

As a preliminary issue in the matter, DP Wright was required to deal with the jurisdictional objection raised by Mr Mansart and make a determination of whether Mr Brunné had been “dismissed” under the FW Act.

Background

Mr Mansart owns and operates a bakery in Nowra, New South Wales called the Ginger Jar Bakehouse (the Bakehouse). The Bakehouse consists of a bakery at the back of the premises and a retail shop at the front.

From 6 September 2021, Mr Brunné had been employed as the Manager of the Bakehouse by Mr Mansart on a full-time basis. In this role, Mr Brunné was responsible for managing the retail section of the Bakehouse and his duties included serving coffee and pastries, preparing food and clearing tables.

The Bakehouse is open Monday to Saturday each week with Mr Brunné typically working 4 to 5 shifts of 8 to 10 hours in duration per week.  During busy periods, Mr Brunné was often assisted in the Bakehouse by casual employees, however he was often the only employee working in the retail section of the Bakehouse. 

The resignation

On 9 September 2023 Mr Brunné was working in the retail shop when trade got very busy and he called out for assistance from Mr Mansart who was working in the Bakery. After serving one customer, Mr Mansart returned to the Bakery. At this time Mr Brunné says that customers were walking out of the Bakehouse as it was too busy and that he was frustrated by this so he called out to Mr Mansart again and asked him to stay and help with the customers. According to Mr Brunné this resulted in Mr Mansart yelling at him. Following this incident, at 10:00am Mr Brunné grabbed his bag and told Mr Mansart that he was sick of everything and that he was leaving. 

The following evening Mr Brunné sent a text to Mr Mansart saying

Saturday was Saturday, tomorrow is a new day, see you in the morning

However on Monday 11 September 2023, Mr Brunné could not bring himself to return to work. Later in the day Mr Brunné did eventually attend the Bakehouse in casual clothing and had a conversation with Mr Mansart about his employment. Both Mr Brunné and Mr Mansart provided differing accounts of this conversation. 

It is Mr Brunné’s recollection that he attended the Bakehouse to inform Mr Mansart that he needed some time off to sort his head out and for Mr Mansart to take this out of his sick or annual leave. Mr Brunné subsequently went and obtained a medical certificate which stated that he was not fit to work until 25 September 2023. 

It was Mr Mansart’s recollection that Mr Brunné stated that he had come to resign and return his keys. This was supported by evidence of a fellow employee who apparently overheard the conversation. Mr Mansart claimed that he questioned Mr Brunné’s text message from the previous evening and that Mr Brunné then said that “he was over it” and that he was quitting. In support of this version of events, Mr Mansart also produced a text message exchange between Mr Brunné and a former employee of the Bakehouse Ms Lim, in which Mr Brunné said: 

G’day Sue, yeah finally got out. I walked out mid morning last Saturday. Long story short he basically stood there talking to a French couple while I got flogged and customers were walking out and when I told him he started yelling at me, icing on the cake.

I heard you had started at 91. It is a lot smaller inside. Don’t push yourself too hard. I will let you know what I end up doing with myself, all kind of happened really fast that I didn’t plan my exit properly. Talk soon xx

Following these events Mr Brunné was expecting to be paid on Sunday 17 September 2023 as he was always paid on a Sunday, but no payment in fact occurred. When Mr Brunné enquired about this as he had been paid yet, Mr Mansart informed Mr Brunné that he would be paid on 20 September 2023 however no payment was received on this date either.

On 22 September 2023 Mr Brunné received an email from Mr Mansart alleging that Mr Brunné had terminated his own employment by  ‘self-action’. According to Mr Brunné, this was the first time that he became aware that his employment had ceased. The letter advised Mr Brunné that Mr Mansart had subsequently deducted one week’s wages from Mr Brunné’s annual leave entitlement due to Mr Brunné resigning without notice.

After receiving this letter, Mr Brunné made an application to the Fair Work Commission alleging that he had been dismissed in contravention of the general protection provisions of the FW Act. 

How the law operates in this area

The legal question that DP Wright was required to answer was whether Mr Brunné had been “dismissed” under section 386 of the FW Act. Section 386 provides that: 

  1. A person has been dismissed if:
    a.) The person’s employment with his or her employer has been terminated on the employer’s initiative; or
    b.) The person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

It is well established that there may be a “dismissal” within the meaning of section 386(1)(a) where – although an employee has given a communication of a resignation – the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion. In those circumstances it is understood that the employee will not have been conveying a real intention to resign.  

In a situation where the employer simply treats the resignation as terminating the employment, rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. 

Lessons for employers 

This case serves as an important reminder that a resignation given in the heat of the moment or when an employee is in a state of emotional stress or mental confusion may not be legally enforceable.  If an employee gives a resignation in one of these scenarios, it is best practice to seek confirmation from the employee of their intention to resign, after a reasonable period of time has passed and the situation is not as emotionally heightened. 

We also note that whilst not it was not the subject of this decision, it is generally accepted that an employer can not legally make a deduction from an employee’s annual leave entitlement on termination of employment as the employer has done in this matter. 

Need further help? 

If you are an employer and need assistance in dealing with a general protections application or would like further information about anything in this article please contact EI Legal at: info@eilegal.com.au

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