HR can move quickly to avoid costly trouble, says Herbert Smith Freehills partner
When is a resignation a dismissal? Or a dismissal a resignation? It sounds hard to get them confused, but it happens.
The Fair Work Commission (FWC) recently dealt with a case where a worker claimed he was forced out of his job. The employer, on the other hand, was adamant that the worker quit of his own free will.
The worker claimed he had no option but to leave his job after he was subjected to alleged bullying, unreasonable work arrangements and unfair disciplinary measures.
The employer, meanwhile, provided the commission with evidence of email communications with the worker stating his position remained open and that they were ready to discuss his return to work.
The case shows how the line between resignation and dismissal can become blurred. It’s just more evidence that clear communication is essential.
Communication key to deciding if worker quit or was fired
The termination of someone’s employment is a very significant matter. An employer who allows confusion and misunderstanding will break trust and dent their own reputation, not to mention risk a harsh judgement from the FWC.
Clear communication is the best policy, said Herbert Smith Freehills partner Shivchand Jhinku.
“It can be as simple as stating, ‘Your employment is coming to an end on this date,’ and making sure that is conveyed clearly and ideally in person, and then followed up in writing, so there is a clear record.”
A resignation should be similarly clear, he said, but things can go awry when individuals quit in the heat of the moment. In that case, the worker should take stock.
“It may mean taking a breath, stepping back and thinking about the decision,” Jhinku said. “Is it the right one? Or is there an issue playing on their mind they want dealt with?”
When a termination is contested
A blow-up between a worker and manager may have been simmering for some time, and HR teams can be caught off-guard. They must waste no time getting to the bottom of things.
“The first step is to get as much information as they can from the manager and from the worker, to understand what is going on,” he said. “Then it is about putting in place a process.”
A face-to-face meeting could follow, facilitated by HR ideally, to allow both sides to explain their positions.
“Without the information, you don’t know what is truly going on,” Jhinku said. “It is easy for people to make assumptions which, down the track, turn out to be wrong and end up costing people time and money.”
If one party is in doubt, it might be the case that the other party is also in doubt.
“Sometimes, the best way to cut through that is to have that discussion and just find out where each party sits on what they think the position is,” he said.
Be clear about the terms of a dismissal
But what if someone’s recollection of events has changed? Or, what if the events hinge on a conversation between two people, and there are no witnesses?
“Then you may never know,” Jhinku said, “because it’s one person’s word against the other.”
Such an impasse could break trust in a relationship.
“Someone says, ‘Well, I distinctly remember you saying A, B and C, now you’re saying X, Y and Z. How can I possibly work with you into the future?’ That is a really tricky situation,” he said.
Hopefully, it’s more the case that people have calmed down and are able to look at the situation more dispassionately.
“There may be a broader agreement in terms of a way forward, for example, where people will check in each week to see how things are going in the short term, to make sure the relationship is back on track,” he said. “Then everyone is clear about what is the way forward.”
