A Full Bench of the Fair Work Commission has confirmed that where an employee resigns on notice and the employer brings the end date forward, the employee has been dismissed at the employer’s initiative. The Full Bench also held that income the employee earned after the period she would otherwise have remained employed should not have been deducted from her compensation, increasing her payment from $4,406.05 to $9,974.19.[1]
Background
Ms Moore had been employed by Bytewize Pty Ltd (Bytewize) for approximately five years as an ICT technician servicing Victorian government schools. On 7 October 2025, following an exchange with the company’s director about timesheets, she emailed to say she would be resigning, then sent a further email that evening, copied to a range of Department of Education and Training addresses advising that she had to resign as the role was no longer sustainable for her mental or physical health, and offering to work until 14 November 2025. The next day, the director replied that the email was unacceptable and stood her down effective immediately.
Deputy President Clancy found that the employment agreement contained no stand down clause and that s 524 of the Fair Work Act 2009 (Cth) (FW Act) was not enlivened, so Bytewize’s decision to end the employment immediately was a dismissal at the employer’s initiative. Circulating the resignation email so widely was unnecessary and potentially embarrassing, but did not amount to a valid reason for dismissal; since Ms Moore was prepared to serve out her notice, bringing the end date of her employment forward was unjust and unreasonable.
Applying the Sprigg[2] approach to remedy, the Deputy President found that she would have remained employed for a further five and a half weeks, to 14 November 2025, and ordered Bytewize to pay her $4,406.05 gross after deducting her post-dismissal earnings.[3]
The Employer’s Appeal
Bytewize was granted an extension of time to appeal, but permission was refused. No arguable error was found in the conclusion that Ms Moore was dismissed, or in rejecting Bytewize’s argument that the anticipated employment period was capped at the contract’s 30 days’ notice. That clause set a minimum and did not prevent an employee giving longer notice, and the employment does not end until the notice actually given expires.[4]
Deductions from Compensation
Section 392(2)(e) and (f) of the FW Act require the Commission to take into account remuneration earned between the dismissal and the order, and income reasonably likely to be earned between the order and payment. The Full Bench held that those provisions do not require the whole of that remuneration to be deducted in every case. Compensation is assessed by reference to the loss caused by the dismissal, so post-dismissal earnings are relevant only in so far as they reduce that loss. Consistent with Ellawala, only money earned during the anticipated period of employment falls to be deducted.
The Full Bench gave two illustrations:
- earnings from a second job the employee already held do not replace the income lost through the dismissal and should not be deducted unless that work was increased after the dismissal; and
- where an employee is unemployed for a time and then finds better-paid work, the loss suffered during the period of unemployment is not offset by the higher earnings that follow.[5]
Ms Moore was unemployed throughout the whole of the five and a half week period and received no income from work until March 2026. The Deputy President was required to take those later earnings into account, but not to reduce a loss that had already occurred months earlier by reference to them. The appeal was allowed and Bytewize was ordered to pay an additional sum of $5,568.14.[6]
Takeaways for Employers
- A resignation on notice does not end the employment early – Bringing the end date forward without the employee’s agreement is a dismissal and ordinary unfair dismissal risk follows. If you want a resigning employee out of the workplace immediately, that needs to be agreed with them or supported by a contractual right.
- Labelling it a stand down does not change the substance – Bytewize’s email said the employee was being stood down, but there was no stand down clause in the contract and no entitlement to stand down under the FW Act. The Commission looked at what the employer actually did, which was end the employment.
- The notice the employee gives sets the period, not your contractual minimum – The contract required 30 days’ notice, but Ms Moore offered to work to 14 November 2025 and that longer period became the measure of her loss. A minimum notice clause does not cap the anticipated period of employment.
- Embarrassing conduct is not automatically a valid reason – Circulating the resignation email was unnecessary and potentially damaging, but that did not justify ending the employment. Conduct concerns still need to be weighed against the ordinary s 387 criteria.
- Not every dollar earned after a dismissal is deductible – Where new income falls outside the anticipated period of employment, the Commission must take it into account but is not obliged to subtract it from compensation. The same applies to secondary employment the employee already held.
- Delay will not shrink the claim – Where the anticipated employment period is short, exposure is effectively fixed at dismissal and will not be reduced by work the employee finds later. That is worth factoring into any assessment of settlement value early in the process.
If you would like advice on managing a resignation, responding to an unfair dismissal claim, or assessing your likely exposure in a compensation matter, please contact us.
Require further information/assistance?
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, including a review of your casual engagement arrangements or assistance responding to an employee choice notification, please contact your Consultant.
[1] Gemma Moore v Bytewize Pty Ltd [2026] FWCFB 217.
[2] Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.
[3] Gemma Moore v Bytewize Pty Ltd [2026] FWCFB 217, [11] – [17].
[4] Gemma Moore v Bytewize Pty Ltd [2026] FWCFB 217, [22], [25]–[28]; Terex Australia Pty Ltd v Cameron [2025] FWCFB 205 [11].
[5] Gemma Moore v Bytewize Pty Ltd [2026] FWCFB 217 [37], [40]–[45]; Ellawala v Australian Postal Corporation (unreported, AIRCFB, Print S5109, 17 April 2000) [34]–[35].
[6] Gemma Moore v Bytewize Pty Ltd [2026] FWCFB 217, [46]–[48].
