Commission rules in favour of employee who was asked to resign

The New South Wales Industrial Relations Commission (NSW IRC) recently dealt with a case involving an employee who claimed unfair dismissal when her employer allegedly directed her to resign from employment, or else she would face stricter consequences. The employer challenged the unfair dismissal case, claiming she voluntarily resigned from her job following negotiations with her superior.

Background of the case

The worker was an assistant principal at a public school and was subjected to an executive teacher improvement program (ETIP) on 31 May 2021. Months later, the school’s principal noted in a report that the worker “has not made sufficient improvement to meet the standard of performance required for the position of an Executive Teacher.”

Due to the outcome of the ETIP, the director of employee performance informed the worker that he was considering the dismissal of the worker from the Teaching Service, tagging her as one of the persons on the “not to be employed in NSW government schools” list (NTBE list). In turn, the worker was given enough time to provide additional information which could be considered before the director made the final decision on her dismissal.

In one of the emails, the director offered conditions to the worker if she did not want to be dismissed and placed on the NTBE list. One of these conditions was allowing the worker to submit a resignation, with the last day of service being 1 July 2022.

“If you withdraw, rescind or amend your resignation, the disciplinary outcome of dismissal will be immediately effective,” the director wrote in an email.

Thus the worker argued that she was pressured to resign to avoid stricter disciplinary outcomes.

“She stated that she had been informed by her union that if she did not resign, she would be dismissed ‘instantaneously’ and that she had signed and submitted the Separation Form because ‘she did not consider that she had a choice,’” the IRC said. “She suggested that she had been acting on the advice of her union to seek a deferral of the resignation date, so as to derive a better financial outcome than might otherwise have been the case.”

The employer contended that the worker tendered her resignation. Thus, the IRC has no jurisdiction to hear the applicant’s case as it only applies to the dismissal of an employee. The employer further argued that the worker “resigned freely and without any undue influence being brought to bear by” the institution.

Moreover, if there was any dismissal, the employer contended that it occurred on 28 March 2022, which was made outside the 21-day period as stated by workplace laws, meaning the application was already out of time.

The commission’s findings

Ultimately, the IRC denied the employer’s motion as it found that the worker was indeed dismissed from her employment. The IRC was satisfied that the worker had little choice but to accept the employer’s counter-proposal. The commission said that the worker “could not be regarded as genuinely pleased with the outcome of [the] negotiation” to the point that her resignation could be deemed as having been “given freely and without any undue influence being brought.”

Moreover, the commission found that the dismissal occurred on 1 July 2022, contrary to the employer’s argument. Hence, the time the worker was obliged to begin proceedings ran from that date, according to the IRC.