Australia: Employer protected from accidental resignation by security officer when attempting conversion to casual employment

In Andre De Menezes Ribeiro v Casino Canberra Limited (U2019/10446) [2020] FWC 1713, the Fair Work Commission (FWC) dismissed an unfair dismissal application of a permanent full-time security officer who unintentionally resigned from his employment altogether when attempting to become a casual employee.

The security officer had been employed with Casino Canberra since 2012, when he received another offer of full-time employment from a different employer in 2019. His apparent intention at the time of the events was to accept this full-time offer but maintain simultaneous casual employment with Casino Canberra.

On 1 August 2019, the officer met with the director of security, and handed him a letter which read:

During a discussion with the director the officer did not mention the reasons why he wanted to move to casual employment, and did not disclose his other full-time employment offer. There was some discussion about the recruitment of other officers generally, but the officer did not stress that his resignation from his full-time position at Casino Canberra, was not intended to affect his ongoing employment with the Casino as a casual employee.

The director signed, dated, and annotated the letter as "received", and the officer left the meeting believing he would be transitioning to casual employment in four weeks' time.

After the meeting, the officer told his colleagues and shift managers that he would be changing to casual employment at Casino Canberra. He was rostered for shifts in the weeks commencing 2 and 9 September 2019 as a casual employee.

On 28 August 2019 however, the officer received an email from the Human Resources Coordinator asking him to complete a final clearance. Confused by the request, the officer emailed Human Resources advising that there had been a "slight misunderstanding" as he was to remain employed on a casual basis. The director clarified that this was not the case.

No offer of casual employment

Before the FWC, the director stated that at no point in the meeting did he make an offer of casual employment to the officer.

The director's account of the meeting was that on 1 August 2019, the officer came into his office with his resignation letter in hand, shut the door, and said that he was going to resign as a full-time security officer. The director told the officer that he could not guarantee him any casual position, and that his services may not be required.

Following the meeting, the director had taken steps to finalise the officer's resignation, and completed a separation notice nominating the officer's last day as 1 September 2019.

In a meeting with one of the shift managers on 26 August 2019, the security director learned that the officer was rostered for casual shifts without his knowledge. After clarifying with the managers that the officer had not been offered casual employment, the officer's name was removed from the rosters.

Despite having realised at this time that the officer may have misunderstood the transition to casual employment, the security director considered contacting the officer was unnecessary following receipt of the resignation letter and the absence of any formal offer of employment on 1 August 2019.

Realising that a final decision had been made to cease his employment with Casino Canberra entirely, the officer lodged an application for relief from unfair dismissal.

Voluntary resignation not dismissal

Deputy President Kovacic criticised the security director for adopting a "somewhat lackadaisical approach" towards the officer's resignation, by failing to mention it to anyone in the Security Department until three weeks' later. Failing to at least confirm with the officer that he would not be engaged on a casual basis was also described as "poor management practice" by the Deputy President.

On the other hand, the security officer's "failure to pick up the phone" and speak to the director or Human Resources Coordinator after 28 August 2019 (he said because he wanted matters in writing), "beggars belief" in the circumstances.

The Deputy President said the central question was whether or not the security officer had been 'dismissed'. The Fair Work Act considers a person to have been 'dismissed' if either:

• the person's employment was terminated on the employer's initiative; or
• the person was forced to resign because the employer's conduct forced him or her to do so.

The common feature is that the employer must have taken an action of some kind. An employee who has voluntarily ended his or her employment will not have been 'dismissed'.

Between the differing accounts of the meeting, it was undisputed that on 1 August 2019, the officer came to the meeting prepared with the letter, and that in the meeting, he failed to state that his resignation from his full-time position was conditional on transitioning to casual employment.

Deputy President Kovacic considered that these matters and an objective reading of the letter of resignation supported the finding that the officer ended his employment on his own initiative.

The officer sought to rely on the fact that the security director had dated, signed, and "received" the letter, therefore accepting its terms of engaging him as a casual employee from which he was later dismissed. But before the FWC, this was found to be the director's typical practice for acknowledging receipt of documents, and not agreeing to its contents.

The officer also argued that the letter was not a resignation letter but instead, a "change of status letter" varying his ongoing employment, such that he was dismissed in the events after the meeting. This characterisation was "misconceived" however, as the officer accepted that whether or not he would be offered casual employment was at the security director's discretion.

Key points

Employees seeking to alter fundamental features of their employment should ensure there is a clear, mutual understanding with their employers, preferably confirmed in writing. Where any changes in their status are conditional on any other factor, employees should also obtain employers' written agreement to satisfying these conditions.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.