FWC must decide if request amounts to 'forced resignation'
The Fair Work Commission (FWC) recently dealt with a case involving an employee who claimed that her redeployment during her tenure was not genuine, and when she asked for a “mutual separation,” it was denied.
On the other hand, the employer raised a jurisdictional objection, arguing that she had voluntarily resigned.
Deena Quayle worked as a Team Leader in the Super Paraplanning Department at SAA Management Pty Ltd on a Level 4 band as of September 28, 2022.
Following a restructuring process that resulted in redundancies, Quayle was not one of the two employees retained in her team. Instead, she was redeployed to various positions between September 28, 2022, and October 12, 2022, including the Mortgage Department, Paraplanning for External Advisor, and Paraplanning Support Officer (Insurance).
Contract issues and resignation
Quayle received a new contract as a Planning Support Officer (Insurance - Level 1) on October 21, 2022. She raised concerns about the lower grading, and the employer acknowledged the error, agreeing that she should be a Level 4 in the new role. Quayle accepted the Level 4 contract on October 26, 2022.
According to records, she said "she should have been promoted to a Level 5 role in her previous role, but the [employer] had not done so," adding that she "was led to believe that she could not remain on the same level due to being transferred to a different department and requiring some training."
On November 17, 2022, Quayle learned that another redeployed employee remained on their current band despite being in the same situation as her.
Following advice from a Fair Work Commission-appointed legal advisor and the Financial Services Union, Quayle requested a mutual separation from the employer, which was denied. She subsequently resigned effective December 12, 2022.
Denied ‘mutual separation’
The FWC considered whether the employer's conduct intended or had the probable effect of bringing Quayle's employment to an end, leaving her with no choice but to resign.
The Commission acknowledged that the redundancies and restructuring would have caused additional stress but found that the employer had not repudiated the contract, forcing Quayle to resign.
The FWC noted that the employer had identified Quayle as a high performer, provided redeployment opportunities, and maintained her salary and flexible working arrangements. Quayle had accepted the new terms of her redeployment and worked in the role for three weeks before learning about her co-worker's situation.
The Commission concluded that Quayle had chosen to repudiate the employment relationship when the employer refused her request for a mutual separation.
As a result, the FWC determined that Quayle was not forced to resign because of the employer's conduct and did not meet the criteria of a person protected from dismissal under the Fair Work Act 2009. The application was dismissed accordingly.
