Employee claims 'forced resignation' after return from stress leave

The Fair Work Commission (FWC) recently dismissed an applicant's claim of "forced resignation" after her return from stress leave and ruled that her employer was "within its contractual rights."

The applicant submitted that she was dismissed in contravention of the Fair Work Act for "exercising workplace rights" and for "taking a temporary absence due to illness or injury." She said that she was forced to resign. 

The applicant performed concierge services at her employer's client's site in Sydney. According to records, she was alone at the concierge desk during New South Wales' COVID-19 lockdown last year. Around July, she requested for stress/mental health leave.

The employer approved her leave request until 4 August 2021, but on the said date, she was advised in a meeting that their client "required her to be removed from [the] placement."

Before the FWC, the applicant filed for dismissal and submitted that she resigned because her position was no longer available after she returned from stress leave. In its defence, the employer said that she resigned voluntarily, and it presented various alternative roles to the applicant.

The FWC noted that the applicant considered she had a right or entitlement to remain at her original placement unless there was a good reason for removing her. It said that "when she was removed without explanation, she had no choice but to resign." The FWC also noted that the applicant rejected the alternative roles given to her.

She then submitted that her refusal is based on her belief that she would have been subject to a new probation period if she had successfully applied for the said role. The FWC rejected her submission and sided with the employer, ruling that it would have been "an internal transfer, not a new employment relationship."

The FWC found the applicant was not forced to resign and dismissed her application.

The decision was handed down on 13 December 2021.