FWC investigates if employer's conduct amounted to forced resignation
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was forced to resign from her employment due to the conduct of her employer.
The worker filed an application under section 365 of the Fair Work Act 2009, alleging that her dismissal contravened the general protections provisions. The employer objected to the application, arguing that the worker had voluntarily resigned and was not dismissed.
The FWC had to determine whether the worker's resignation was indeed voluntary or if she was forced to resign due to the employer's actions.
Background of the case
The worker started working with the employer in October 2023 and made numerous workplace complaints starting from May 2023. In November 2023, she was informed that she would be subject to a disciplinary investigation.
Shortly after, the worker provided medical certificates indicating she was unfit for work until February 2024. The worker engaged a lawyer who responded to the allegations on her behalf in December 2023.
The employer replied in January 2024, noting that the medical certificates did not specify whether the worker was fit to participate in ongoing communications regarding the investigation.
Alleged conduct forcing resignation
According to records, the worker claimed that she was forced to resign because representatives of the employer had advised several people that her employment would not be continuing.
She argued that this conduct demonstrated the employer's intention to no longer be bound by the employment contract.
In a letter dated 8 February 2024, the worker's lawyer stated:
"It has come to our client's attention that staff members have been informing a third party that our client has resigned from her employment. In our view, this conduct shows an intention of [the employer] to no longer be bound by the contract of employment.”
“It is our client's position that [the employer] has consequently and unfairly taken disciplinary action against her and treated her less favourably than other employees, whilst also changing her role during her employment. In these circumstances, it is unsafe for our client to return to the workplace and it is clear that the employment relationship has broken down and is irreparable," the worker's lawyer added.
The employer's response
The employer responded to the worker's claims, stating that they were not aware of any employees referring to the worker as having resigned.
They requested details of the alleged third party and employees involved to make inquiries into the allegations.
The employer also noted that the worker had several alternative options, including remaining on unpaid personal leave while recovering or cooperating with the investigation when medically able to do so.
The FWC’s decision
The FWC emphasised that for a resignation to be considered a dismissal under section 386(1) of the Fair Work Act, it must be either at the employer's initiative or forced due to the employer's conduct, leaving the worker with no real choice but to resign.
The Commission found that the worker had not discharged her burden (onus) to demonstrate that she had no real, effective, or meaningful option but to resign.
The FWC stated:
"The investigation of the [worker’s] alleged conduct was not completed at the time the [worker] resigned and so the outcome of that investigation was unknown. Further, there is nothing in the evidence which supports a finding that the decision to investigate the allegations made against the application was in itself conduct that forced the [worker] to resign."
The FWC also noted that the alleged conduct relied on by the worker, involving other employees telling her they had been told she had resigned, was not known to her at the time of her resignation and therefore could not have contributed to her decision to resign.
"I agree with the [employer] that the [worker] had options available to her at the time she resigned which she could have exercised instead of resigning, which included to:
a. make inquiries with the [employer] as to the status of her employment;
b. remain on personal leave;
c. participate in the investigation; or
d. pursue other employment opportunities to avoid the investigation being finalised if she so chose," the FWC said.
Ultimately, the FWC concluded that the worker was not dismissed within the meaning of the Fair Work Act. The Commission said:
"The [worker] has not discharged her burden (onus) to demonstrate that she had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that she was dismissed within the meaning of the Act." Consequently, the worker's application was dismissed by the FWC.
