In a recent decision, the Fair Work Commission (“FWC”) considered whether an employee had resigned or had been dismissed by her employer, after her employer failed to recognise her four-week notice period. This case serves as an important reminder that if an employee resigns with notice, an employer cannot simply waive the notice period without either the employee’s agreement or paying them in lieu of that notice.  

Background 

The employee commenced with the employer in July 2024 as a full-time personal trainer. The employee suffered from back pain which was exacerbated when she worked with clients who trained with heavy weights. In March 2025 the employee’s pain worsened, and she asked that her duties be modified to accommodate her pain. The employer was willing to accommodate her for one week but asked that the employee seek medical advice about her condition.  

A few weeks later, the employee tendered her written resignation via email, clearly stating that she was giving the “standard four-week notice period” and that her final working day with the employer would be 14 May 2025. Her employer responded to the email the next day, accepting her resignation and stated that they would “waive the notice period in good faith”. The employee responded to her employer to say that she did not agree to the waiving of the notice period unless she was paid in lieu of notice. Importantly, the employee stated that she was fit to perform all duties during the notice period.  

As the employee had not provided updated medical evidence about her back pain, the employer suggested that there were no alternative duties for the employee to perform during the four-week notice period, unless she was willing to complete “flyer distribution” and provide an updated capacity-to-work letter which confirmed she was fit to undertake these duties.  

The employee objected to the employer’s proposal that she perform flyer distribution as she believed it was outside the scope of her role as a personal trainer and requested that she be paid in lieu of notice as was her right under the National Employment Standards, as the business had ultimately “chosen not to provide [her with] work during the notice period”. The employer responded to the employee’s objection via email, attaching her offer of employment which stated that the delivery of flyers formed part her role, and that since she had declined to perform these duties (and had returned her keys and uniform as had been requested of her), she was electing not to work and therefore “was not entitled to any payment in lieu of notice”.  

The employee proceeded to file an application with the FWC to deal with a general protections dispute involving dismissal, alleging she had been dismissed because she had a temporary back injury.  

What the FWC said  

The FWC found that the employee’s resignation was valid, included a four-week notice period and that the employer could not unilaterally waive the notice period without the employee’s agreement. Importantly, the FWC decided that the employer’s insistence that the employee either perform flyer distribution or forfeit her notice pay amounted to an ultimatum. It was this ultimatum that effectively superseded the resignation and resulted in a dismissal at the employer’s initiative. The FWC therefore concluded that the employee’s employment ended on 17 April 2025, being the day that the employer gave the ultimatum.  

Key takeaways 

Managing resignations may seem straightforward, but as this case demonstrates, there are significant legal risks attached to deviating from standard notice procedures. It is an important reminder that employers cannot waive a notice period unless the employee agrees to this, or the period of notice is paid in lieu. If an employer refuses to allow an employee to work their notice and does not pay them in lieu of notice, this may constitute a dismissal. Additionally, alternative duties offered to an employee during a notice period must be consistent with the notice period terms of an employee’s employment contract.