FWC offers guidance on handling workplace access and disputes
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was constructively dismissed after raising concerns about underpayment of wages and training time.
The worker argued that after bringing these issues to her employer's attention, she returned from annual leave to find herself locked out of company systems. According to her, this was the culmination of a pattern of conduct that created a hostile work environment, leaving her with no choice but to resign.
The case raised important questions about when a resignation might be considered a dismissal under the Fair Work Act, particularly when a worker alleges their employer's actions forced them to quit.
The worker began a bookkeeping traineeship in April 2022, working two days weekly while completing a Certificate IV qualification. Her training contract specified 16 hours of employment/training per week over 24 months.
By mid-2024, after researching on the Fair Work Ombudsman (FWO) website, she believed she was being underpaid. She contacted her employer about missed overtime payments and questioned whether she should be paid for training time.
The employer sought HR advice and attempted to formalise the arrangement through an employment contract. However, this remained unsigned as the worker had concerns about its terms, particularly regarding her pay rate and a clause limiting employment to the traineeship period.
While on annual leave in late September 2024, the worker contacted the FWO and prepared a spreadsheet of claimed underpayments.
The day before her return, she emailed her employer about these issues. That same day, the employer sent an email outlining new work procedures, including restrictions on client communication: "You will no longer speak to clients if there is an issue you will speak to me first and I will sort it out."
Upon returning to work, the worker discovered she was locked out of the company's system. Within an hour, she resigned by email, citing a "hostile environment" and concerns for her mental health.
The worker filed an application with the FWC under section 365 of the Fair Work Act, claiming constructive dismissal.
She argued three factors forced her resignation: the employer's failure to address pay concerns, the system lockout, and the creation of a hostile workplace. She believed these actions were deliberately designed to force her out.
The employer, who was the director of the bookkeeping business, countered that the system lockout was a routine security measure during leave periods that she simply forgot to reverse. In her immediate response to the resignation, the employer explained:
"I did not get the chance this morning to re-instate your access to the practice protect portal before you returned from leave. Disabling the access is a security measure when you are on a longer period of leave in order to protect confidential client data."
The Commission examined whether the employer's conduct forced the resignation, applying the test of whether "the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result."
The FWC found that while the worker had raised legitimate pay concerns, the employer had taken steps to address them and remained open to discussion. The employer had been working to extend the traineeship and develop a new training plan.
Regarding the system lockout, the Commissioner accepted it was an oversight rather than an intentional act to force resignation. The Commission also noted the worker made no attempt to contact her employer about the access issue before resigning.
The Commissioner highlighted established principles regarding constructive dismissal, noting: "I have found that [the employer] had taken steps to address [the worker's] concerns and was not closed to continued discussion."
The decision cited relevant case law: "Resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options besides resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant."
The Commissioner emphasised that employees must generally exhaust available options before a resignation can be considered forced: "Having considered the facts of this case, I find that [the worker] had real options available to her to address her concerns, but that she did not avail herself of these."
In dismissing the application, the FWC concluded: "Considering all of the evidence and relevant case law objectively, I do not accept that [the worker's] dismissal was at the initiative of [the employer], nor have I been convinced that [the employer] engaged in conduct that left [the worker] with no option other than to resign."
The Commissioner noted: "It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management's actions or decisions does not mean that there was a constructive dismissal."
The Commissioner further stated: "[The worker] resigned and did so voluntarily, as is clearly reflected in her resignation email. That email was not at the initiative of [the employer] and there is no evidence before me that convinces me that [the employer's] acceptance of it somehow took place in a situation such that [the worker] could not reasonably be understood to be conveying a real intention to resign."
The case highlights that for a resignation to be considered forced under the Fair Work Act, there must be sufficient evidence that the employer's conduct either intended to bring about the end of employment or made continued employment untenable.
