A Sydney stevedore who resigned with a 4:39am, typo-filled email before retracting it has had a huge unfair dismissal win at the Full Bench of the Fair Work Commission. The stevedore argued that he was in a “delusional and paranoid” state when he sent the resignation email. The Commission originally quashed his Fair Work unfair dismissal claim. However, on appeal the Full Bench ruled that his employer had not properly considered his mental health when accepting his resignation, ordering his claim to be reheard.
In this article, we look at the events of this unfair dismissal NSW case: David Gourlay v Sydney International Container Terminals Pty Limited [2025]. We also look at a recent case where a worker retracted her resignation and later won over $4,000 at the Commission.
Sydney-based David Gourlay began working as a stevedore for Sydney International Container Terminals (trading as Hutchison Ports) in October 2016. He worked at the Port Botany terminal. Over the course of his employment, the company had implemented six “absence management plans” due to Mr. Gourlay exceeding his annual personal leave entitlements. These plans required him to provide medical evidence for any absence. Before the events of September 2024, Mr. Gourlay had been absent for approximately 10 weeks. In his Fair Work unfair dismissal claim, he said that this absence was necessary due to “seriously paranoid thought processes” he was experiencing.
Mr. Gourlay returned to work at the terminal on 25 September 2024. During this shift, he was informed that the Maritime Union of Australia had agreed with the company to reduce the hours of all stevedores due to a downturn in work. Mr. Gourlay took this to mean his income was about to be significantly reduced. He told the Fair Work Commission that this news caused him extreme stress and exacerbated his mental health condition. This led to a night of insomnia and “paranoid thoughts.” During the early hours of the next day, he sent multiple emails to coworkers accusing them of “conspiring against him.”
At 4:31 am the next day, Mr. Gourlay sent an email to Sydney International Container Terminals’s generic HR address stating: “To whom may concern. I , David Gourlay resignation as of today.” He then fell asleep. At 11:02 am, a HR manager replied to confirm receipt. He told Mr. Gourlay that his last day of employment would be that day, before thanking him for his “hard work.”
Upon waking and seeing that response, Mr. Gourlay immediately sent a follow-up email at 11:24 am. He told the HR manager “Sorry disregard my previous email. I wasn’t thinking straight due to stress. I’ll be in tonight for a night shift.” However, by 6:09 pm, the HR manager replied stating that Mr. Gourlay’s resignation had already been accepted and processed through payroll. Mr. Gourlay later lodged a Fair Work unfair dismissal claim.
In his claim, Mr. Gourlay argued that his termination of employment was at the initiative of his employer. He said that he was in a “delusional and paranoid” state of mind when he had sent his resignation email. Mr. Gourlay claimed that he never intended to quit his job. He argued that “special circumstances” existed regarding the email. This included the 4:31 am timestamp and the grammatical errors. He claimed these should have given rise to a “reasonable suspicion” that his resignation was not voluntary.
Sydney International Container Terminals responded to Mr. Gourlay’s Fair Work unfair dismissal claim by raising a jurisdictional objection. It contended that no dismissal had occurred, arguing that his resignation was “unambiguous.” The company said that they were not aware of anything that could have reasonably led to the conclusion that Mr. Gourlay had not freely given his resignation. The employer provided evidence that it was “not uncommon” for stevedores to resign “out of the blue” or immediately after exhausting their leave entitlements, as Mr. Gourlay had recently done.
The employer further argued that Mr. Gourlay was merely “unreliable” and that management was entitled to treat the resignation as final once processed. The company’s terminal operations manager told the Fair Work Commission that he would not agree to reinstating Mr Gourlay. This was because of his history of absences, noting that the business found his lack of reliability to be a “challenge.”
Mr. Gourlay’s Fair Work unfair dismissal claim was first heard by the Fair Work Commission in March 2025. It accepted that Mr. Gourlay suffered from stress, anxiety and paranoia and was in a state of “mental confusion” when he wrote the resignation email. However, because the employer was not aware of his “mental confusion” at the time, the resignation was ruled as effective. The Commission described the company’s decision as a “tough call, if not a harsh one.” However, it ultimately concluded that Mr. Gourlay’s Fair Work unfair dismissal claim could not proceed as there was no termination at the initiative of the employer.
Mr. Gourlay appealed this decision, leading to a hearing with the Full Bench of the Fair Work Commission in December 2025. It found that the original decision contained an appealable error. The Full Bench determined that the inquiry into special circumstances should not be limited only to what the employer knew at the precise moment the email was processed. It said that a reasonable amount of time should be allowed to lapse to determine if a resignation is truly intended.
The Full Bench of the Fair Work Commission noted that the 22-minute gap between the company’s acceptance and Mr. Gourlay’s retraction was a “short” period. Crucially, they found that the company had ignored special circumstances that became apparent shortly after the email was sent. This included warnings from two coworkers and the union branch secretary who told Sydney International Container Terminals that Mr. Gourlay was having a “mental health crisis.”
The Full Bench therefore quashed the original decision. It referred the matter back to the Fair Work Commission for a rehearing, giving Mr. Gourlay a second chance to challenge his dismissal.
Another recent Fair Work unfair dismissal claim that involved a questionable resignation is Karren Burns v M & R Clayton Pty Ltd [2025]. Canberra-based Karren Burns began working for podiatry clinic M & R Clayton as a part-time receptionist in 2019. During her time at the clinic, she maintained a consistent working pattern, typically working three days per week. The event that culminated in her termination of employment occurred on the afternoon of 16 July 2025. The clinic owner, Mark Clayton, directed Ms. Burns to go home early because there were no patients scheduled. When Ms. Burns enquired if she would be remunerated for the remainder of her shift, Mr. Clayton told her that she would not be.
Further tension arose when Mr. Clayton informed Ms. Burns that he intended to reduce her ongoing hours to 2.5 days per week. This led to a significant misunderstanding. Ms. Burns believed he had said “two half days.” She later claimed such a reduction “makes no sense” in a clinical context but it had caused her immediate distress. Ms. Burns’ Fair Work unfair dismissal claim detailed that she then had a short “heated” discussion” with Mr. Clayton in front of another staff member. Ms. Burns said that she became “extremely upset and anxious” and told Mr. Clayton that she “may as well quit.”
Following the outburst, Ms. Burns left the clinic. Mr Clayton told the Fair Work Commission that he interpreted her leaving as a formal resignation, noting she had cleared out her desk. That evening, Mr. Clayton sent an email to Ms Burns stating he was “sad and sorry” the relationship ended that way but accepted her resignation, wishing her well in “new endeavours.” Ms. Burns replied the following morning, clarifying the misunderstanding regarding the “two half days.”
She said that she would like to continue her employment and that she was “ happy to discuss the reduced hours.” Despite this, Mr. Clayton replied stating it was in the “best interests” of both of them for Ms. Burns to stay true to her decision to quit. Ms. Burns attempted to attend work again on 22 July 2025, but was told by Mr. Clayton that she had “no right to be there.” She was asked to return her keys and leave.
Ms. Burns subsequently lodged a Fair Work unfair dismissal claim arguing that her statement about quitting was a “heat of the moment” reaction rather than a considered resignation. She submitted that she had clarified her intent through an email on 17 July 2025. She had told Mr. Clayton that it wasn’t her intention to react the way she did, but that she felt he had put her in an unfavourable position. Ms. Burns argued that after eight years of “loyal service,” M & R Clayton should have allowed her a reasonable period of time to “cool off” and reflect. She further contended that she had not provided a written resignation. Ms. Burns raised the point that she even attended the workplace on 22 July 2025 to resume her duties.
Meanwhile, M & R Clayton raised a jurisdictional objection to Ms. Burns’ Fair Work unfair dismissal claim. It argued that the Fair Work Commission lacked the power to hear the matter because Ms. Burns had voluntarily resigned. The clinic said that Ms. Burns’ intent was clear because she had cleared out her desk before leaving. M & R Clayton also maintained that it had the right to refuse the resignation withdrawal, stating that Ms. Burns’ position was not tenable after her reaction. The clinic also argued that business conditions necessitated a restructure. It said that it was experiencing reduced cash flow and that Mr. Clayton was entering his “last year of my working life.” The clinic said these factors influenced the decision to accept Ms. Burns’ resignation and reject her retraction.
Ms. Burns’ Fair Work unfair dismissal claim was heard by the Fair Work Commission in December 2025. It noted that under the Fair Work Act 2009, a dismissal occurs if a person is forced to resign due to employer conduct. Also, if a “heat of the moment” resignation is handled incorrectly. The Commission found that Ms. Burns did not have a “real intention” to resign. This was evidenced by her prompt attempt to correct the misunderstanding the following day. The Commission emphasised that employer conduct is “not a necessary element” for a resignation to be legally ineffective if the employee is in a state of emotional stress.
The Commission therefore found that Ms. Burns had indeed been dismissed, and that it had been harsh and unfair. It took into account that M & R Clayton was a small business with no dedicated HR personnel. However, this did not justify the refusal to acknowledge Ms. Burns’ retraction. The Commission found there was no valid reason for dismissal and that it did not constitute a genuine redundancy despite the employer’s claims regarding business slowing down. It found that reinstatement was inappropriate because the clinic had ceased operating in September 2025. On the basis that Ms. Burns would have remained employed for a further five weeks had the dismissal not occurred, the Commission ordered the clinic to pay her $4,090.50.
Read more: The 13 Funniest Ways to Quit a Job: Resigning in Style with Dramatic and Hilarious Flipsides
When work ends suddenly or the pressure becomes unbearable, knowing where you stand can make all the difference. We at Australian Workplace Discrimination Representatives helps employees across Australia with unfair dismissal, forced resignation, general protections, sexual harassment and discrimination matters.
Deadlines apply to Fair Work claims — in most cases, you have 21 days from the end of your employment to take action. If you’re unsure whether your situation is worth pursuing, don’t wait. Contact us at 1800 333 666 for a free and confidential discussion.
