Jack Lipari v YPA Estate Agents Pty Ltd (U2019/919).  FWC 3546. Hampton, DP. 13 June 2019.
In a nutshell, this (ex) employee told his employer that he needed the day off to take his mum to a medical appointment and do other things. The employer said they were very busy and that he could not take the day off but would him time to attend to his mother’s medical appointment.
The applicant, Mr Jack Lipari was employed by YPA for about 2 ½ years.
Mr Lipari, having been denied a day off, threatened to take sick leave. Becoming angry, he left the employer’s premises despite the employer warning that if he left, he would lose his job. His reply was “stuff this joint” then went to the car park and got in his car, spun his wheels in the driveway and drove off.
His employer tried to contact him by phone, but he did not answer.
The DP’s summed it up:
- Mr Lipari’s statement was a threat to take false sick leave.
- Mr Lipari asked for the next day off and his manager refused, proposing instead that he take his mother to the doctor and then come to work later in the day. Mr Lipari rejected this proposal and threatened to take an unauthorised and illegitimate sick leave day.
- He said to his manager ‘stuff this joint’ and left. He did not say he was going home ill. He was told by his manager that if left the workplace he should not come back. This clearly conveyed to Mr Lipari that if he walked off the job the company would consider him to be ending his employment. Despite this, Mr Lipari left work sometime after 7.00 am that day and did not return. He also did not attend for work the following day or make any effort to contact the company until 3.30 that afternoon.
Was he dismissed?
No, according to the DP:
“The case law on this concept makes clear that it entails termination of employment brought about by the employer and which is not agreed to by the employee. In cases where the employment relationship is not left voluntarily by the employee, the focus is whether any action on the part of the employer was the principal contributing factor leading to the termination of the employment”.
“In my view, objectively considered, Mr Lipari’s actions, together with his statement ‘stuff this joint’, conveyed a clear intention to resign. This intention is underscored by the circumstances that Mr Crupi told Mr Lipari how he would interpret his decision to leave the workplace, and that Mr Lipari proceeded to leave work despite this”.
Was it in the “heat of the moment”?
Again no. Mr Lipari did not contend that he resigned in the ‘heat of the moment’. He said that he did not resign at all. I have nevertheless considered whether, given he was angry and stormed off, his case might fall within the circumstances described in Bupa Aged Care Australia Pty Ltd v Tavassoli, where a Full Bench of the Commission considered the authorities in relation to resignation in the context of s 386(1)(a) and concluded:
“… although the employee has given an ostensible 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 such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible 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.”
Mental illness no defence
The DP also considered the evidence that the applicant suffers from anxiety and depression, stating:
“… I am prepared to accept that he has mental health challenges. But I do not accept, and there was certainly no medical or other evidence to indicate, that these problems affected his decision-making process, or, importantly, that the company was aware that Mr Lipari had any mental health problems. An objective and reasonable assessment of the circumstances was that Mr Lipari chose to resign from his employment when he did not get his way”. [My emphasis].
Dismissal not unfair
More to the point, the DP stated that even if he found that Mr Lipari’s employment was terminated at the initiative of the employer, the conclusion would be that the dismissal was not unfair.
In cases where employees “resign” in an impulsive manner, it is always good practice to contact the employee in writing to confirm their intentions. For example, give seven days to respond. No response: Then resignation accepted. If return to work, then on a final warning.
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