A recent Fair Work Commission (FWC) decision serves as an important reminder that employers must exercise caution when dealing with resignations — particularly when considering whether to bring forward an employee’s intended last day. Even where a contract appears to allow payment in lieu of notice, altering the employee’s nominated end date may constitute a dismissal for the purposes of making a General Protections Claim.
In Woolley v Your Hobart Doctor Pty Ltd [2025] FWC 3677, Deputy President Clancy found that an employee had been dismissed for the purposes of section 386(1) (a) of the Fair Work Act 2009 (Cth), despite the employer’s attempt to rely on its contractual right to pay in lieu of notice.
What Happened?
The employer had performance concerns, and on 14 July 2025, the employee was invited to attend a meeting the following day to discuss her performance. There was some disagreement between the parties about what was said in that meeting, but both accepted that performance management issues were raised.
Two days later, on 17 July 2025, the employee resigned by email. She provided two weeks’ notice, advising that her employment would end on 1 August 2025.
The employer responded by stating it was exercising its contractual entitlement to pay the employee in lieu of notice and advised that her employment would instead end on 21 July 2025 — ten days earlier than the date she had nominated.
Why the FWC Said This Was a Dismissal
Deputy President Clancy carefully examined whether the employer’s actions amounted to a termination at the employer’s initiative. The key findings included:
- The employee intended to work out her notice period and had clearly stated her final day would be 1 August 2025.
- The employer unilaterally brought the employment to an end earlier than the date chosen by the employee.
- It was irrelevant that the employer sought to rely on a contractual right to provide payment in lieu of notice.
- By choosing a different termination date, the employer effectively ended the employment on its own initiative.
This meant the employee had been dismissed within the meaning of section 386(1)(a) of the Fair Work Act. The matter will now proceed to a conference before the FWC.
