In Jung Hong v Green Drake Pty Ltd as Trustee for the Grey Unit Trust t/as Grey Farming [2026] FWC 1934, the Fair Work Commission found that an employer had dismissed an employee despite genuinely believing that he had resigned. The decision is a timely reminder that where an employee’s intentions are unclear, employers should take reasonable steps to clarify the position before treating the employment relationship as having ended.
Background
Mr Hong had worked for Grey Farming for many years. Following a series of discussions with his employer about personal matters, including plans for his wife’s business, Mr Hong became emotional and disclosed that he was taking medication for depression and anger management.
The following day, Mr Hong attended a medical appointment but was not provided with a medical certificate. He nevertheless attended the workplace to discuss the situation with his employer.
During a conversation in the workplace car park, the employer asked whether Mr Hong wished to continue working for the business. Mr Hong responded “No”. The employer understood this to be a resignation. Mr Hong, however, believed he was being dismissed when he was instructed to return the work vehicle, collect his belongings and leave the workplace.
The employer subsequently processed Mr Hong’s final pay and treated the employment relationship as having ended.
The Decision
The Commission accepted that the employer genuinely believed Mr Hong had resigned. However, the question was whether a reasonable person would have understood Mr Hong to have clearly communicated an intention to resign.
The Commission found there was a real possibility of misunderstanding, having regard to a number of factors, including:
- Mr Hong was emotionally distressed;
- He was experiencing mental health difficulties and had recently changed medication;
- English was not his first language;
- No clear words such as “resign”, “quit” or “terminate” were used;
- There was no discussion regarding notice; and
- The employer made no attempt to clarify Mr Hong’s intentions before processing his final pay.
While the employer’s belief was genuine, the Commission held that a reasonable employer would have sought clarification before treating the employment relationship as having ended. By proceeding on the assumption that Mr Hong had resigned, the employer effectively terminated his employment.
The Commission therefore found that Mr Hong had been dismissed and dismissed the employer’s jurisdictional objection.
Resignation Risks: Practical Guidance for Employers
An employer’s genuine belief that an employee has resigned may not be enough.
Where an employee appears distressed, emotional or confused, or where there may be language barriers or ambiguity in communications, employers should exercise caution before accepting an apparent resignation.
Employers should consider:
- seeking written confirmation of any resignation;
- allowing a cooling-off period where comments are made during emotional discussions;
- clarifying the employee’s intentions before processing final pay;
- confirming any resignation in writing; and
- carefully documenting conversations.
Where there is uncertainty about whether an employee intended to resign, clarification should be sought before treating the employment relationship as at an end. Failing to do so may result in what was thought to be a resignation being characterised as a dismissal under the Fair Work Act.
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