What employers and employees need to know about quitting vs being forced out
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was forced to resign due to the conduct of her employer. The worker alleged that interactions with a dentist and the practice manager constituted bullying and harassment that left her with no choice but to resign.
Under section 386(1)(b) of the Fair Work Act 2009 (Cth), a resignation can be considered a dismissal if the worker was forced to resign because of conduct by their employer. The worker argued that her case met this criteria, as she felt she had no option but to resign to protect her mental health.
The case highlights questions about what differentiates voluntary resignations from those that may be deemed forced due to workplace conduct.
The worker had been employed part-time at the dental clinic since June 2024. On 20 November 2024, one dentist at the clinic offered the worker's services to another dentist, who had a more complex workload that day.
The said worker, a dental assistant, objected to working with this second dentist because his practices required her to stand for extended periods, which she believed would worsen her leg pain.
This led to a confrontation between the worker and the second dentist. She claimed he yelled at her and told her that "if [the worker] didn't like it, [she] could find another job." The dentist denied this, saying he spoke calmly and told her that patient care was the priority, and if she couldn't accept that, perhaps the clinic wasn't the right workplace for her.
Despite this exchange, the worker worked with the second dentist throughout the day. That morning at 9:39 am, she texted the first dentist stating, "I resign the job how much should I pay for Invisalign for full amount?" The first dentist questioned whether this was what she really wanted to do, noting that swapping rooms for patient care was not unreasonable.
Later, the worker told the practice manager she wouldn't be coming to work the next day. The worker asked for a temporary replacement, but there was disagreement about whether this request was fulfilled. The practice manager said she organised a replacement which she later cancelled.
When discussing sick leave, the FWC found that the practice manager didn't call the worker a liar but said she couldn't agree to sick leave "because we both know you're not going to be sick tomorrow." The worker mentioned her mental health was not good, to which the practice manager replied, "It's OK. Tomorrow will be different."
That evening at 10:30 pm, the worker emailed her resignation effective immediately. The FWC found a critical communication gap existed – the second dentist was never told about the worker's leg pain concerns, while she didn't know he hadn't received this information.
The FWC found that evidence showed the worker was valued by the practice. Both the practice manager and the second dentist gave evidence that during the day, the second dentist had complimented the worker on her work.
The practice manager testified that the second dentist told the worker “She was a good nurse, and that [the employer] did not want to lose [the worker]." According to the practice manager, at day's end the second dentist said to the worker that she was "a really good nurse and we really hope you stay but it is up to you."
The FWC accepted this evidence, finding it contradicted any claim that there was intention to force the worker to resign. The Commissioner noted: "Far from wanting the employment relationship to end, the evidence shows that [the worker] was valued by the practice and well regarded for her skills and professionalism."
The FWC applied the test from the Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v. Tavassoli case, which states that for a resignation to be considered a dismissal, the employer must have either intended to end the employment or created a situation where the worker had "no effective or real choice but to resign."
The FWC was not satisfied that the employer engaged in conduct with the intention of ending the employment. The Commissioner noted: "No-one, including [the second dentist], conducted themselves in a way that was intended to force [the worker] to resign. They had no reason for doing so. The incident between [the second dentist] and [the worker] was precipitated by a misunderstanding."
The FWC explained: "I also do not think that termination of the employment was the probable result of the employer's conduct such that [the worker] had no real or effective choice but to resign. I accept that [the worker] was very distressed by the conversation and felt that she had been treated poorly and unfairly. However, the option of continuing to work was clearly open to her."
The decision noted that the worker "weighed her options on the evening of 20 November, including discussing the matter with her partner who 'asked [the worker] to quit.'" This suggested to the FWC that the worker had considered options and made a choice.
The Commissioner concluded: "[The worker] was not forced to [resign] by the conduct or a course of conduct engaged in by her employer. [The worker] was not dismissed within the meaning of s.386(1)(b) and the prerequisite to a valid application under s.365 has not been established."
The jurisdictional objection was upheld, and the application was dismissed. The FWC emphasized that for a resignation to be considered a dismissal under the Fair Work Act, there must be evidence that the employer either intended to end the employment or created conditions where the worker genuinely had no choice but to resign.
