A dance instructor was awarded nearly $25,000 in compensation after his unfair dismissal for refusing to take out the rubbish between shifts. The FWC’s considerations in this case, including the employee’s visa status and his resignation in the heat of the moment, carry important lessons for HR.

An employee’s refusal to take out the rubbish outside of his contracted work hours did not justify his dismissal, ruled the Fair Work Commission (FWC) in a recent case.

The employee, a dance instructor who had been working for his employer on a sponsored visa for around 18 months, refused to continue performing this task on the grounds that it was not part of his role and he was not compensated for the time spent doing it.

After a heated exchange in a staff meeting, the employee was given an ultimatum: follow this instruction or leave the organisation. In response, the employee impulsively stated that he would leave.

The employer interpreted this as a resignation. However, the employee later clarified that he had not intended to resign but had simply left in the heat of the moment.

Taking into account a number of complex factors, including the impulsive nature of resignation, the employee’s status as a sponsored visa holder and the employer’s failure to comply with the Small Business Fair Dismissal Code, the FWC found that the dance instructor had in fact been unfairly dismissed, and ordered the business to award him $24,497 in compensation.

Below, Lauren Brouwer‑French​​​​, Senior Associate and Team Leader at Harmers Workplace Lawyers, sheds light on a number of important HR questions raised by this case. 

How should HR respond to employees resigning in the heat of the moment?

A key point of contention in this case was whether the employee had actually resigned or was dismissed. While the employee did express his intention to leave in the heat of the moment, a number of previous FWC rulings have highlighted the fact that an employee verbally stating an intent to leave their role, or ‘rage quitting’, does not always qualify as an official resignation.

“Employers are entitled to accept a clear, unambiguous resignation from employees,” says Brouwer‑French. 

“If, however, that resignation is given in circumstances where, for example, an employee is under some kind of extreme pressure – like it was in this case – employers should allow a reasonable amount of time to pass between an employee giving a resignation and accepting that resignation, and they should also potentially take steps to actively confirm that the employee did in fact intend to resign.”

In this case, the FWC found that the employer did not take appropriate steps to confirm whether the employee’s impulsive departure was a genuine resignation. Instead, the business proceeded as if the employment had ended, failing to provide an opportunity for the employee to clarify their intentions.

Further complicating matters, the employer later shifted its stance and issued a formal dismissal letter to the employee outlining his alleged misconduct, including refusing a ‘lawful and reasonable direction’ to take out the rubbish.

This would have undermined the employer’s case significantly, says Brouwer‑French. By subsequently purporting to dismiss the employee, it essentially acknowledged the fact that the employee’s resignation was invalid, and also drew attention to the failures in the business’s dismissal process.

This is an important reminder for HR to ensure that the reasons given for a dismissal are consistent, and that there are documented, unambiguous processes for both resignations and dismissals.

Read more about managing heat-of-the-moment resignations here.

Can employers direct employees to perform tasks outside of paid shifts?

Central to the dispute in this case was the employee’s refusal to take out the rubbish in between his paid shifts. 

He argued that taking out the rubbish was not part of his job description as a dance instructor, and the Commission noted that the employer had not clearly outlined job expectations regarding non-teaching duties.

“It could be difficult for an employer to make a case that employees are required to follow directions to perform work outside of their regular hours,” says Brouwer‑French. It would depend on the circumstances, she says.

The fairness of asking employees to perform tasks outside of work hours has been a hot topic since the much-hyped implementation of the Right to Disconnect last year. However, according to Brouwer‑French​​​​, this legislation relates mostly to contacting employees out of hours and, since the employer in this case issued the instruction during work hours, the Right to Disconnect would likely not apply here. 

However, this does not mean the employer’s behaviour was reasonable or lawful. 

Another piece of legislation which could come into play in cases like this is Australia’s recently revamped wage theft laws, she says.

“That’s definitely something employers would have to be mindful of, particularly for award-covered employees. Employers need to make sure that they are paying employees the correct entitlements in terms of any overtime rates or on-call allowances if they’re expecting employees to perform work [outside of regular hours]. There are now serious penalties for [intentionally] underpaying employees for the work that they’re performing, [including potential criminal charges].”

“An individual’s personal circumstances is something that the Commission will take into account in these unfair dismissal cases. And [not just] their visa status – things like, are they the sole breadwinner for their family?” – Lauren Brouwer‑French​​​​, Senior Associate and Team Leader at Harmers Workplace Lawyers

How might an employee’s visa status impact the outcome of an unfair dismissal case?

In order for a dismissal to be considered unfair, the FWC must conclude that it was harsh, unjust and/or unreasonable. 

Interestingly, in considering the ‘harshness’ of this dismissal, the Commission took into account the fact that the employee was in Australia on a Skills in Demand (subclass 482) visa, sponsored by the employer. 

“The Commission pointed out the fact that this individual had come to Australia from the Philippines on a working visa [due to] a skill shortage, and he had specifically gone to this employer. So to dismiss somebody who’s gone through all of that for a relatively minor incident is really harsh in the circumstances. 

“An individual’s personal circumstances is something that the Commission will take into account in these unfair dismissal cases. And [not just] their visa status – things like, are they the sole breadwinner for their family? Or, how is the dismissal going to impact them on a personal level? And in this particular case, the Commission found that [his circumstances] rendered the dismissal harsh.”

The employee’s visa status was also relevant in determining the amount of compensation awarded. The FWC considered that, if not for the dismissal in July 2024, the employee would have likely remained employed at the organisation until January 2025, when his visa was set to expire. 

This assumption may well have influenced the calculation of lost earnings, as the Commission estimated that the employee would have earned an additional 26 weeks’ pay had he remained employed until that date. In other words, the visa’s expiration provided a natural endpoint for assessing the likely duration of continued employment.

Following recent changes to migration law, employees on temporary work visas now have more legal avenues to make general protections claims against their employers, most notably through the new Workplace Justice Visa, which allows migrant workers to remain in Australia for up to 12 months to fight an active workplace claim.

While the employee in this case did not make use of this visa given that he was able to secure new employment not long after his dismissal, its introduction marks an important step in helping migrant workers in circumstances like this fight back against exploitation, and employers should be on alert that uptake of this visa may increase in the near future.

Learn more about recent changes to migration law here.

How are unfair dismissal cases handled differently in small businesses?

Under the Fair Work Act, employers are generally obliged to provide employees with a formal warning and an opportunity to respond before dismissal, among other obligations. However, there are exceptions to certain requirements for dismissal in businesses with fewer than 15 employees, who are subject to the Small Business Fair Dismissal Code.

“There can be a little bit more leniency [in the process] for small businesses,” says Brouwer‑French​​​​. This does not mean, however, that the process can be harsh, unjust or unreasonable. 

“One of the factors the Commission will consider is whether a small business has a dedicated HR person who is familiar with these processes. It also has an impact in terms of eligibility to bring a claim. For small businesses, an employee has to be employed for a minimum of 12 months before they can file their dismissal claim. In regular-sized businesses, the minimum period of employment is six months.”

The employer in this case argued that the dismissal was justified under the Small Business Fair Dismissal Code, which allows a small business to dismiss an employee without a formal warning if there is an instance of serious misconduct, including refusing lawful and reasonable instructions.

However, if the dismissal is for performance or conduct reasons that do not amount to serious misconduct, the Code requires employers to give employees a valid reason for dismissal and provide them with an opportunity to respond – neither of which occurred in this case.

Having found that the employee’s refusal to take out the rubbish did not meet the threshold for serious misconduct, the FWC found the dismissal was not in accordance with the Code. 

“Procedural requirements in the Code weren’t complied with in terms of giving the individual an opportunity to try to rectify the problem – the employer just acted a bit too quickly,” says Brouwer‑French.

To avoid situations like this, it’s crucial for small businesses to familiarise themselves with the Code and its requirements rather than assuming that the size of the business and/or the lack of a dedicated HR function exempts the organisation from its legal obligations during a dismissal, she adds.

Key aspects of a fair dismissal process

The final HR takeaway from this case, and perhaps the most important, is the importance of a compliant and clearly documented dismissal procedure, says Brouwer‑French.

“Make sure that a clear, lawful reason for dismissal is identified,” she says. “Have a discussion with the employee to let them know there is concern about a particular issue, and give the employee an opportunity to rectify it or respond to it before any decision about termination is made.

“If the decision is made to terminate the employment, make sure it’s communicated in a fair and clear way, and make sure that there’s a clear, documented record of the whole termination process.”

Based on her experience with unfair dismissal cases, Brouwer‑French notes that employers often make the mistake of rushing through the process to oust the employee as soon as possible. 

“Always make sure you’re taking things step-by-step rather than prematurely making decisions in the heat of the moment,” she says.

With careful consideration of legal obligations at every stage of the process, employers are less likely to miss key requirements and open themselves up to claims of harsh, unjust or unreasonable dismissal. 

All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.

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