FWC examines if employer failed to accommodate disability during review process
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was forced to resign from her position as an event supervisor at a Victorian alpine resort.
The worker argued that her employer failed to accommodate her learning disability, subjected her to bullying, and initiated an unfair performance management process. She said that these actions left her with no choice but to resign.
This case raises important questions about the balance between performance management and employee rights, particularly when disabilities are involved. It also highlights the challenges in determining when a resignation can be considered "forced" under Australian employment law.
Background and performance concerns
The worker started her role as an event supervisor with Alpine Resorts Victoria (ARV) on 5 December 2022. Initially, she worked remotely due to a landslide blocking access to Falls Creek. Around mid-February 2023, she began working on-site and disclosed to her manager that she had dyslexia.
In September 2023, a new manager took over and soon formed concerns about the worker's performance. These issues included communication skills, failure to follow directives, and inability to manage workload and meet deadlines.
Specific incidents raised by the employer included problems with organising important events like their Feastival Falls Creek and the Falls Creek Long Lunch 2024. For example, the employer said the worker failed to obtain a necessary Parks Victoria planning permit for an event, which was described as a "serious mistake."
Performance management process
On 20 February 2024, ARV started a formal performance management process. The worker was presented with detailed allegations about her performance and given a chance to respond. The employer's letter outlined four main areas of concern:
"[The worker] was told, both in the meeting and the letter, that [she] would be stood down while an investigation was conducted into the allegations made against [her] and that [she] was required to provide a written response to the detailed matters, by no later than close of business on Wednesday, 21 February 2024."
The worker was initially given 24 hours to respond but was granted an extension after informing her employer that a family member had died the previous day.
After receiving the worker's response, ARV decided to continue her employment subject to a Performance Improvement Plan (PIP). The employer wrote to the worker, stating:
"As part of your return, you will be required to adhere to and follow a performance improvement plan, as there are still a number of concerns regarding your time management, project management, and communication skills. This will include ongoing training and development."
Worker’s resignation
Before the PIP could be fully discussed or implemented, the worker resigned. In her resignation letter, she said she considered it a "forced resignation" due to the treatment she had received, particularly regarding her dyslexia. She wrote:
"I consider this a forced resignation, as [the employer] has given me no choice but to resign from my position due to the treatment I have received throughout my employment. This treatment has been in response to issues I have raised with senior staff about the behaviour of other staff towards me. I also feel that [the employer] has not been helpful or accommodating with respect to my learning disability."
The worker listed several reasons why she felt forced to resign, including failure to provide support and training, failure to make reasonable adjustments for her disability, failure to provide a safe workplace free from bullying and intimidation, and poor treatment in response to her exercising workplace rights.
Upon receiving the resignation, ARV invited the worker to reconsider her decision. A manager from ARV wrote:
"We are disappointed that you believe that you don't not have any other alternative than to resign from your position. At this time, we would like you to reconsider your resignation on the basis that we believe the issue raised by you can be resolved."
However, the worker viewed this communication as inappropriate, given that she had legal representation. She said:
"[The manager's] continued contact direct to me indicates that she was not understanding of the constant intimidation and harassment that I had endured and that she was simply perpetuating the behaviour of [the employer's] management."
Is it forced resignation?
The FWC examined whether the worker's resignation was truly "forced" or whether it was a voluntary decision. The Commission found that the employer's actions did not amount to forcing the worker to resign.
The FWC said:
"These steps, of both putting in place a performance improvement plan after responses had been sought about workplace behaviour and performance allegations, and then of inviting a reconsideration of a decision to resign, are simply not consistent with a finding that there had been a dismissal for reason of a forced resignation."
The FWC also noted that the worker had other options available:
"Rather than resigning a further alternative available to [the worker], to work under its terms while seeking alternate employment."
In conclusion, the FWC said:
"Having considered these matters, I am not persuaded that any conduct on the part of [the employer] has been such that it forced [the worker's] resignation or that it was conduct that intended to bring the employment relationship to an end or that it had such a probable result."
