Was it a forced resignation? FWC probes worker's intentions, employer's actions
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed he was forced to resign from his position at a government agency.
The dispute centered around whether the worker's resignation constituted a dismissal under the Fair Work Act. This case sheds light on the issues that can arise when an employee resigns but later claims it was not truly voluntary.
The FWC had to carefully examine the timeline of events and communications between the parties to determine if the employer's actions amounted to a constructive dismissal.
The worker had been employed at the government agency since 2010, primarily focused on the energy sector. In 2019, he entered into an individual flexibility arrangement (IFA) that provided him with a salary 5% above the standard rate for his classification.
This IFA was set to remain in place until April 30, 2020, or until replaced, agreed otherwise, or terminated. However, the worker continued to be paid in accordance with it even after the expiry date.
In September 2022, the worker requested an increase to 15% above the standard rate. Around this time, there was a change in management in his branch. The worker claimed the new manager treated staff disrespectfully, though the FWC rejected these allegations.
In December 2022, there was a general 3% pay increase applied to nearly all staff at the agency. The worker benefited from this increase, which was applied automatically without adjustment to his existing IFA.
By December 2022, the worker felt he could no longer work in his branch and began looking for other opportunities. He took a temporary role at a state government department from March to December 2023.
In March 2023, the agency offered the worker a revised IFA (the 2022 IFA). This maintained the 5% above standard rate but also incorporated the 3% general increase from December 2022.
It also excluded a clause from the enterprise agreement relating to time off in lieu (TOIL). The worker did not sign this new IFA, leading to confusion about which IFA was in effect.
In late 2023, the worker was in discussions with an energy company about a potential job offer. On December 7, 2023, he met with his manager and advised he had received a verbal offer, though he claimed it was not yet finalised. That same day, he formally accepted a written offer from the energy company.
Over the following weeks, the worker made inquiries about his leave balances and arranged to take leave up until February 2, 2024 - his planned last day before starting with the energy company on February 5.
On December 20, 2023, the worker was informed that the basis for his IFA no longer applied and it would cease that day.
On January 19, 2024, the worker submitted his resignation letter, providing 14 days’ notice with February 2 as his final day.
The worker claimed he had "no real choice but to resign" due to several events, including:
He argued the agency had repudiated his employment contract, forcing him to resign.
The FWC rejected the worker's claims, finding his resignation was voluntary and not a dismissal under the Fair Work Act.
The FWC noted that the worker had formally accepted the energy company's offer on December 7, before submitting his resignation to the agency. It found there was no conduct by the agency that could allow a conclusion that the worker was later dismissed.
Regarding the IFA, the FWC emphasised that it was a temporary agreement, not a permanent arrangement. The agency was entitled to decide not to continue the IFA or make a fresh one.
The FWC concluded that the resignation was voluntarily given according to a decision the worker had already made to resign. He was not dismissed by the agency within the meaning of the Fair Work Act.
This case demonstrates the importance of carefully examining the full timeline and context when assessing whether a resignation amounts to a dismissal. Even if an employee is unhappy or feels mistreated, that alone is not sufficient to render a resignation involuntary.
Employers should ensure proper documentation of discussions about an employee's intentions to resign. Clear communication about matters like changes to employment arrangements can help avoid misunderstandings that could lead to disputes.
