The case

Moore v Woolworths Group Limited t/as Big W (2020)

Ms Moore was investigated by her employer, Woolworths Group Limited t/as Big W (Big W) in relation to a number of alleged safety breaches. Findings were made against her and she was asked to show cause why her employment should not be terminated. Thereafter, a meeting was arranged to discuss Big W’s decision in relation to Ms Moore’s employment.

On the morning of the meeting, Ms Moore was advised by another employee that her employment was going to be terminated. The employee provided Ms Moore with a copy of a draft termination letter, which they had obtained by unauthorised means. Ms Moore tendered her resignation before the meeting. Big W accepted the resignation and the meeting did not proceed.

Ms Moore thereafter commenced unfair dismissal proceedings.

The verdict

The Fair Work Commission (FWC) found that:

• Big W had not taken any action that had forced Ms Moore to resign;
• the unauthorised actions of another employee in locating a draft termination letter could not be said to constitute a formal decision by Big W to terminate Ms Moore’s employment;
• the disciplinary process was not concluded at the time Ms Moore resigned her employment; and
• by resigning her employment, Ms Moore had given up her right to claim unfair dismissal, as she had not been dismissed by Big W.

The lessons

When undertaking a disciplinary process, it is prudent to notify the employee that there may be disciplinary consequences including possible employment termination. The decision to terminate employment should not be made and thereafter communicated to the employee until the disciplinary process has been finalised.

If an employee voluntarily resigns during an investigation or disciplinary process, an employer may accept the resignation. The investigation process can still continue but if the employee wishes to voluntarily resign their employment, they are free to do so. Employers do not need to refuse to accept a resignation in these circumstances. This case demonstrates the benefits of accepting a resignation.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.