Heat of the Moment Resignation Questioned, but Ultimately, Dismissal Found not to be Unfair
The ‘Bad’ in ‘the Good, the Bad and the Ugly’ from our 11 July 2025 podcast on Working From Home, is a striking Fair Work Commission (FWC) decision where an organisation has successfully defended the dismissal of a worker who had issued chilling threats to his managers, despite claims the employee had resigned in the “heat of the moment.” The case offers a powerful reminder of the standards surrounding workplace conduct and resignation protocols.
Background
An employee had allegedly engaged in concerning conduct in the workplace, including:
- Watching disturbing content and playing inappropriate music at work;
- Regularly using female bathrooms despite being asked not to;
- Accusing a co-worker of illicit and inappropriate activities;
- Operating a forklift then stating he would fail a drug test; and
- Stating to co-workers that he had been in prison with another volunteer for the organisation, and that that volunteer had been incarcerated for murder.
The employer scheduled a performance management meeting, in which a formal warning was to be issued. The meeting quickly unravelled, with the employee losing his temper.
The Incident
During the meeting, the employee reportedly became confrontational and threatening, inciting bikie violence and telling his managers that they “better watch their backs” and “there is a bullet with your name on it”. The incident culminated in a heated resignation, where he declared, “I’m done. I’m out of here,” and tossed his keys at management. He then collected his belongings and left.
Later, the employee sent a text message asking when he could return to work. Management confirmed via text message that his resignation had been accepted, and he would not be returning to work. The employee denied resigning and asserted that his employment had been terminated.
An application to the FWC for remedies for unfair dismissal was lodged shortly after. The employer resisted this application with a jurisdictional objection, asserting that the employee was not dismissed, rather he had resigned, and in the alternate, if there was a dismissal it was not unfair as the employment came to an end due to serious misconduct.
The Commission’s Analysis
Commissioner Schneider concluded that it was likely that a resignation did occur at the conclusion of the meeting, however, he acknowledged that the resignation had occurred in a heated moment and suggested that the employer should have provided the employee an opportunity to reconsider his resignation, after a cooling off period. He further noted that while resignations “may usually be taken as they come, in some circumstances, there arises a duty to clarify a resignation.”
After hearing competing evidence on the resignation, Commissioner Schneider noted that if a resignation had not occurred, he would be satisfied that a dismissal at the initiative of the employer had occurred. However, that dismissal was not unfair given the seriousness of the employee’s conduct at the meeting.
As such, the application was dismissed. This case serves as a timely reminder to employers that:
- Heat of the moment resignations are not always final; employers should allow time for reflection after emotionally charged exchanges and seek confirmation or clarification after the fact.
- Threats alone justify summary dismissal; safety in the workplace is paramount.
- Emphasis on the importance of adequate documentation during performance management processes, the production of and reliance on verbal and written warnings, file notes of conversations and plans for a performance review assisted the employer in this case.