Fair Work rules against employer after post-departure email backfires
SYDNEY: One email sent the day after an alleged resignation helped sink an employer’s jurisdictional objection at the Fair Work Commission.
When Keelan Parker left Equipment Specialists Australia on 10 June 2025, his employer believed he had resigned. Parker disagreed, and the dispute ended up before the Fair Work Commission.
Parker filed a general protections application on 1 July 2025, claiming dismissal rather than resignation. The company pushed back, and the matter went to a jurisdictional hearing. On 1 September 2025, Commissioner Simpson dismissed the employer’s objection, finding Parker had in fact been dismissed.
At the heart of the decision was a note the employer sent Parker the following day, which read: “you think about our discussion and decide if you can continue to work at ESA.” Commissioner Simpson found those words fundamentally at odds with the employer’s position, concluding that “the evidence simply does not amount to a communication of an intent by Mr Parker to permanently end the employment relationship by resigning.” The Commissioner also noted, as an aside, that even had the employer succeeded in its resignation argument, the departure would still have constituted a termination under the Fair Work Act 2009.
The employer’s witness statements drew further scrutiny. Parker alleged that key information had been omitted, including managerial decisions taken after a meeting on 10 June 2025 and on 11 June 2025, a direction to a staff member to ask Parker to obtain a medical certificate the day after the supposed resignation, and matters relating to WorkCover Queensland. Parker also alleged that no internal correspondence referenced any resignation, and that the employer had failed to pay his entitlements.
Parker’s lawyers wrote to the employer on three occasions, on 31 July 2025, 7 August 2025, and 26 August 2025, requesting it withdraw the jurisdictional objection. Neither the employer, which was unrepresented for the first two requests, nor its lawyers at Hallewell Law, who had been engaged by the time of the third, responded. Parker’s team also alleged the employer sent concerning correspondence during the dispute, including statements such as “I’ve been waiting for your email,” that the system was “corrupt and wrong,” and that Parker would have to “answer to God.”
After the jurisdictional objection was dismissed, Parker applied for a costs order under the Fair Work Act 2009, seeking $4,400. On 7 April 2026, Commissioner Simpson dismissed the application, describing the employer’s failure to reply to Parker’s emails as inappropriate but falling short of the threshold required for a costs order. The Commissioner found that merely because he had found against the Respondent did not mean its objection had no reasonable prospects, and that the outcome was ultimately assisted by the giving of oral evidence at the hearing. He also noted it was notable that Parker had filed two general protections applications simultaneously, one relating to dismissal and one as a non-dismissal matter, after recording the employer’s argument that this opened up a reasonable basis for the objection. Ultimately, the Commissioner concluded that the Respondent’s wish to have the Commission determine the jurisdictional issue by way of a hearing was not so unreasonable as to warrant a costs order.
The case is a practical reminder that post-separation communications can define an employer’s legal position just as much as what was said in the room. A follow-up message written with the intention of being fair to an employee can, if poorly worded, directly contradict the employer’s own account of events. Ensuring separation correspondence accurately reflects what occurred, and that witness accounts do not omit relevant facts, is foundational to any employer’s position in subsequent proceedings.
