A part-time waitress was unsuccessful in her general protections application after the Fair Work Commission found that her employer’s instruction to 'go home' during a dinner service confrontation did not, objectively, constitute a dismissal.
In issue
A key issue for the Fair Work Commission was whether the words 'go home' objectively constituted a dismissal or merely amounted to an instruction for the waitress to leave the workplace at the conclusion of the dispute.
The background
Ms Shuk Lan Wu was employed as a part-time waitress at Tam Jai Aust Co Outlets Pty Ltd (Employer). On 25 February 2026, during dinner service, Ms Wu became involved in a heated discussion with the Employer’s operations manager. Ms Wu alleged that the operations manager conducted himself in an intimidating manner, and on two occasions, questioned whether she wished to continue working with the Employer. In response, Ms Wu stated that, as the most senior person present, the operations manager had the authority to direct her to leave if he no longer wished for her to continue her employment. It was undisputed that the operations manager subsequently said words to the effect of 'go home now'.
Ms Wu understood this statement to mean that her employment had been terminated. Following the incident, she returned her uniform, blocked the operations manager’s contact number, and left the company WhatsApp group. Later that night, Ms Wu also submitted a written incident statement in which she sought payment in lieu of notice, accrued annual leave and her final employment entitlements.
The Employer disputed that Ms Wu had been dismissed. It maintained that the direction to 'go home' was simply a direction for Ms Wu to leave the workplace in order to de-escalate the heated situation, and that she remained employed and rostered to work.
The decision
The Commission found that Ms Wu had not been dismissed.
Importantly, the Commission did not consider the words 'go home' in isolation to constitute a dismissal. Rather, it considered the words in the context of the entire interaction and, critically, what occurred following the conversation.
The day after the incident (being 26 February 2026), the Employer confirmed in writing that Ms Wu had not been terminated and remained employed and rostered for work. The Commission considered this subsequent conduct to be evidence of the Employer’s intention and the continuing employment relationship.
Ms Wu’s own subsequent conduct was also relevant. On 27 February 2026, she provided a medical certificate covering a period of absence and participated in an investigation meeting with the Employer that was arranged at her request. The Commission considered these matters inconsistent with the proposition that Ms Wu’s employment had ended on 25 February 2026.
Ms Wu alternatively argued that, even if she had not been expressly dismissed, her resignation had been forced by the Employer’s conduct. In considering that argument, the Commission applied the principles concerning forced resignation, including those discussed in BUPA Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941. The relevant question was whether the employer intended to terminate the employment relationship, or whether termination was the probable consequence of its conduct, such that the employee had no choice but to resign.
The Commission rejected that argument. A single heated workplace confrontation, particularly where the Employer clarified the following day that Ms Wu remained employed, was insufficient to establish that the employment relationship had ended.
Accordingly, the application was unsuccessful because the Commission was not satisfied that Ms Wu had been dismissed.
Implications for you
This decision provides a useful reminder that the context, intention of the decision maker, and subsequent conduct are critical when determining whether an employee has been dismissed.
Employers should nevertheless exercise caution when using language such as 'go home' or similar expressions during a heated workplace interaction. While the Commission ultimately found that 'go home' did not constitute a dismissal in this case, an employee could reasonably understand such language as an immediate termination. The decision demonstrates that prompt written clarification can be important evidence of an employer’s intention and may assist in resolving any ambiguity as to whether termination has in fact occurred.
Employees should also be aware that their subjective understanding of a manager’s words will not necessarily determine whether they have been dismissed. The Commission will examine the objective circumstances, including the words used, the context in which they were used, the decision maker’s intention and the actions of both parties following the interaction. Employees who believe they have been dismissed should promptly seek clarification from their employer in writing.
Ms Shuk Lan Wu v Tam Jai Aust Co Outlets Pty Ltd [2026] FWC 2736
