FWC confirms Jackie O stalker’s resignation and grants $49k in lost wages

The Fair Work Commission has concluded an unfair dismissal dispute after a ports worker attempted to rescind a 4:00am resignation on the basis that they were experiencing paranoia.

In a decision handed down on 4 September 2026, commissioner Damian Sloan determined that Hutchinson Ports’s acceptance of a 4:30am email as an official resignation was harsh due to the employee’s severe and untreated mental health disorder.

The case ran alongside a criminal trial that concluded at the end of 2025 with a 16-month prison sentence and a five-year Apprehended Violence Order (AVO).

The unfair dismissal proceedings followed a resignation email sent by David Gourlay to Sydney International Container Terminals, trading as Hutchinson Ports, in the early hours of 26 September 2024.

His employer accepted the resignation during the working hours of 26 September 2024; however, Gourlay attempted to retract the resignation that day, claiming the email was unintentional and a product of paranoid delusion that he was unaware of at the time.

Gourlay first filed for unfair dismissal on 16 October 2024, which was dismissed by Sloan on the basis that the employment came to a conclusion as a result of the termination rather than at the initiative of Hutchinson Ports.

Permission to appeal was granted by the Full Bench of the Fair Work Commission (FWC) on 18 December 2025, with the matter being referred back to Sloan “for rehearing as to whether Mr Gourlay was dismissed by Hutchinson Ports within the meaning of s.386(1)(a) of the Fair Work Act based on the evidence admitted to date and such further evidence as the commissioner may decide to admit”.

An objection by the respondent was dismissed, and a further finding that the dismissal was unfair was made on 20 April 2026.

In making the determination, Sloan noted that it is possible to consider “special circumstances” whereby the employee’s intention “should be clarified before the purported resignation is accepted” and that any likelihood of stress or confusion should cause specific consideration of the employee’s mental condition.

At the same time, it was explained that reconsideration is only possible when the resignation is classified as “in the heat of the moment” rather than a “considered and deliberate step” – the latter of which formed part of the respondent’s claim on the basis that it was a typed resignation.

However, Sloan determined that the employer effectively initiated the termination by holding Gourlay to his allegedly paranoid-driven resignation email and rushing the process despite evidence that he was struggling.

In this way, the dismissal was identified as “unquestionably harsh” due to management’s “failure to act appropriately and meaningfully” on the information surrounding Gourlay’s condition.

“Mr Gourlay had nearly eight years’ service. I accept that it was not without its issues, but it was harsh for Hutchinson Ports to purport to treat Mr Gourlay’s resignation as legally effective and accept it,” Sloan said.

Further, it was noted that management’s claim that the resignation was also processed, in part, due to the employee’s purported unreliability, that “there were other ways in which that may have been addressed”.

The dismissal was, on appeal, found to be unjust and harsh.

Despite Gourlay seeking reinstatement, Sloan found that this was not appropriate due to the criminal conviction and ongoing health challenges.

In addition, it was highlighted that the applicant may no longer possess the qualification or eligibility to hold a maritime security identification car which is necessary to perform his role.

In this way, Sloan found that payment of compensation was appropriate “in all circumstances of the case”.

In consideration of Gourlay’s submission that he should receive “the statutory maximum of 6 months lost wages and benefits”, Sloan applied an amount “ equal to the difference between the earnings he would have derived had he remained employed by Hutchinson Ports during the anticipated period of employment, and the remuneration that he earned from other work or employment in that period”.

Sydney International Container Terminals must finalise the $49,728 compensation payout by 25 September 2026.

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