After unscheduled absences, worker says she faced 'ultimatum'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged she was forced to resign from her employment with a health insurance company.
The case centred around whether the worker's resignation was truly voluntary or if she was effectively forced out by her employer's conduct.
It raised important questions about the line between voluntary resignation and constructive dismissal, as well as proper disciplinary procedures and the handling of mental health issues in the workplace.
The worker began her employment as a customer service advisor with the health insurance company in April 2023. Her role involved taking customer service calls from the company's health insurance customers, including queries about their private health insurance policies.
By September 2023, the worker started experiencing attendance issues and failing to follow proper notification procedures for absences. Her team leader held meetings with her to address these concerns and set clear expectations going forward.
On 10 October 2023, the team leader made it clear that there would be "zero tolerance for being late moving forward."
Despite these discussions, the worker continued to have unscheduled absences and failed to properly notify her employer. The employer implemented a new process requiring employees to call a dedicated "Sick Line" to report absences, which became a point of contention later in the case.
The ongoing attendance issues led to a formal investigatory meeting on 28 November 2023. During this meeting, the employer raised allegations about the worker's unscheduled absences, failure to follow the required notification process, and failure to provide evidence to support her absences.
Following this meeting, the employer issued a first and final warning letter to the worker on 4 December 2023. The warning letter stated that any further misconduct, including failure to follow reasonable directions such as calling the Sick Line before the start of shifts, could result in termination of employment.
However, the worker had additional attendance issues in the days immediately following the warning. She was late to work on 5 December, exceeded her break time on 6 December, and did not show up for work or make contact on 7 December.
On 8 December 2023, the worker's team leader held a coaching session with her to discuss the ongoing issues. The details of this meeting were heavily disputed by the parties and formed the crux of the case.
The worker claimed her team leader created "a coercive and [intimidating] atmosphere" and presented her with an ultimatum to either resign immediately or face termination. She alleged she was told she would be dismissed the following Monday if she did not resign.
In contrast, the team leader denied forcing the worker to resign. She said she simply laid out the options available, including that the worker could wait for the outcome of the disciplinary process if she wished.
The team leader claimed the worker voluntarily chose to resign after indicating she had secured another job offer with her previous employer.
The case hinged on whether the employer's conduct essentially forced the worker to resign, or if it was a voluntary decision on her part. Some key points of contention were:
The worker argued that her resignation was not voluntary, but was coerced through "duress and undue influence" by her team leader. She claimed the meeting created a hostile environment where she had no real choice but to resign.
She also alleged her team leader failed to properly convey her mental health struggles to HR. The worker contended that she had been the victim of a cyber-attack, which resulted in physical symptoms such as headaches, fatigue, insomnia, anxiety, and stress.
She argued that these issues, along with her symptoms, were not adequately considered in the disciplinary process and exacerbated her attendance issues.
The worker also claimed that the constant changes in absence notification procedures, from contacting the team leader directly to using the Sick Line, significantly increased her anxiety and made it difficult for her to comply.
The employer maintained that the worker resigned voluntarily. They argued there was no intention to force her resignation, and that proper procedures were followed throughout the disciplinary process.
The team leader denied telling the worker she would definitely be fired. She claimed she simply explained that termination was a possible outcome if further misconduct occurred.
The employer's witnesses testified that no final decision on termination had been made at that point, and that further steps in the disciplinary process would have been taken before any decision to terminate was made.
The employer also disputed that the worker had disclosed any diagnosable mental health condition that required accommodation. They stated she was offered access to the Employee Assistance Program but did not take it up.
The employer's evidence suggested that when the worker mentioned anxiety, she was asked if she had medical evidence or had accessed the Employee Assistance Program, to which she replied she hadn't and that she was okay.
After weighing the evidence, the Commission determined that the worker had not been dismissed within the meaning of the Fair Work Act. It found that she resigned voluntarily and was not forced to do so by her employer's conduct.
The Commission stated:
"I have concluded that [the worker] had formed a view that she was likely to be dismissed soon because of her conduct post the final warning. I generally found [the team leader's] evidence to be more credible."
It also noted:
"I am satisfied on the evidence that [the team leader] did not seek to coerce [the worker] to resign but merely laid out the options open to her in the circumstances."
Regarding the worker's claim about being told she would definitely be fired, the Commission found:
"I am not persuaded that [the team leader] said to [the worker] on the Monday 11 December that [the worker] was never going to be dismissed, as it seems implausible that she would have done so."
"For the reasons set out above I have concluded that the [worker] has not been dismissed by the [employer] within the meaning of section 386(1) of the Act, and the [worker] brought the employment relationship to an end on her own initiative," the FWC added.
This case highlights the importance of following proper procedures in disciplinary matters and carefully documenting all communications with employees.
It also demonstrates the challenges in determining whether a resignation was truly voluntary when it occurs in the context of ongoing performance issues, and the importance of properly addressing and documenting any mental health concerns raised by employees.
