After talking with CEO, worker argues she had no other option but to leave
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was dismissed from her employment, while the employer maintained that she had resigned. The dispute centred around the circumstances of the worker's departure and whether it constituted a dismissal under the Fair Work Act 2009.
The worker argued that her resignation was not voluntary but was instead forced by her employer's actions. She claimed that during a crucial conversation with the company's CEO, she was effectively told that her employment was ending.
The employer, on the other hand, insisted that the worker had chosen to resign of her own after being informed about an upcoming performance review. This case raised important questions about the line between resignation and dismissal, and the role that an employer's conduct can play in an employee's decision to leave their job.
Dismissal or resignation?
The case focused on a conversation that took place between the chief executive officer (CEO) of the company and the worker on 3 June 2024. Following this conversation, the worker sent an email stating her resignation, which the CEO acknowledged. However, the two parties gave very different accounts of the conversation that came before the resignation email.
The worker said that the CEO had effectively ended her employment during their conversation. She stated that the CEO had said, "I want to give you the opportunity to resign" and "this is your last day."
On the other hand, the CEO said that he had only told the worker about an upcoming performance review meeting and that she had chosen to resign on her own.
Analysing context in employment disputes
The FWC looked at various pieces of evidence to understand the background of the worker's departure. This included:
- Previous interactions between the worker and her direct manager
- A complaint made by another employee about the worker's direct manager
- A conversation between the worker and another company executive before her meeting with the CEO
- Text messages exchanged between the worker and a colleague right after her meeting with the CEO
The FWC found that these surrounding events supported the worker's version of events. For example, a colleague's testimony showed that the worker appeared "visibly upset" after her meeting with the CEO.
Determining the nature of termination
In making its decision, the FWC applied the reasoning from a previous case, Bupa Aged Care Australia Pty Ltd v Tavassoli. The commission stated:
"Applying the reasoning in Tavassoli I am satisfied that [the CEO], as agent of [the employer], spoke to [the worker] with the intention of bringing her employment to an end. When [the CEO] said the words 'I assume [your senior colleague] has spoken to you' (after [the latter] had said shortly [to the worker] before 'I was wondering if you have another job in mind that you could go to'), and when he said the words 'I want to give you the opportunity to resign' and also 'this is your last day', [the worker] had no effective or real choice but to resign."
In concluding the case, the FWC emphasised the importance of considering all surrounding circumstances when determining whether a dismissal has occurred. The decision stated:
"As such, I am satisfied that [the worker] was an employee who was dismissed within the meaning of s.386 of the Act and that she is entitled to make an application under the general protection provisions."
The commission further explained its reasoning:
"On balance I accept that [the CEO] said to [the worker] that 'this is your last day' when discussing her resignation. When he said these words, [the worker] had no reasonable option but to resign. Quite obviously, if she did not resign in that moment she would have been dismissed on the same day."
The case also revealed that there had been ongoing issues between the worker and her direct manager. On 1 May 2024, the manager had spoken to the worker on the phone in an aggressive tone, causing her distress. This incident was witnessed by another employee. The CEO was present but did not intervene until prompted by the other employee.
Furthermore, on 24 May 2024, the manager had sent a draft performance plan to the CEO. This plan was highly critical of the worker's performance as the marketing manager and did not appear to contain any plan to help the worker improve.
The FWC said that these events provide important context to the final conversation between the CEO and the worker on 3 June 2024. It noted that there were ongoing performance concerns and tensions in the workplace leading up to the worker's departure. Consequently, the FWC directed the parties’ matter to a conference.
