Employer starts disciplinary process before worker resigns
The Fair Work Commission (FWC) recently dealt with a case where a worker claimed he was forced to resign due to his employer's conduct.
The worker argued that he faced sustained harassment from his direct manager, lack of management support, and unsubstantiated allegations of misconduct.
He also claimed he was required to supervise others without proper training or payment and that he wasn't paid correct entitlements.
Worker’s tensions with his manager
The case involved a worker employed as a court painter since July 2022 by a company operating in the sports construction business. In late 2023, the company hired a new construction manager, which led to a series of conflicts.
Despite the worker's experience in the industry, he struggled to accept the authority of his new superior. This tension manifested in various incidents. For example, on 1 November 2023, the worker questioned the manager's decision about staffing arrangements. In text messages, the worker wrote: "I've already planned my day working solo" and "Is labour being utilised efficiently?"
The situation escalated further on 9 November 2023, when the worker sent an email to the general manager, stating: "[The manager] has not shown to me that he wants to learn nor is he listening to the 10+ years experienced staff" and that the manager "shows immaturity and instead of learning or even listening to the team disregarding that he may be the least experienced to dealing with the issue at hand."
Management's attempts at resolution
The general manager made several attempts to resolve the conflict between the worker and the construction manager. On 3 November 2023, she sent a text message to the worker saying: "No more texting with [the manager] until we 3 sit down and resolve these issues once and for all. I'll be back Monday and sort out a time."
Despite these efforts, the worker's behaviour continued to cause concern. On 27 November 2023, the worker yelled aggressively at the general manager regarding her perceived favouritism towards the construction manager.
In response, the general manager allowed the worker to take the rest of the week off, showing understanding and attempting to de-escalate the situation.
Disciplinary process and resignation
As the worker's conduct persisted, the employer started a disciplinary process. On 19 December 2023, the worker received a letter outlining eight allegations against him.
These included accessing the office inappropriately, failing to follow reasonable management directions, photographing confidential information without approval, swearing at the manager in front of other staff members, and bringing alcohol onto work sites despite previous warnings.
However, before the disciplinary process could be completed, the worker resigned. In his resignation letter dated 22 March 2024, he claimed he was forced to resign due to the employer's conduct.
He cited issues such as being required to supervise labour without proper training or payment, failure to pay correct entitlements, sustained harassment from his direct manager, lack of management support, and unsubstantiated allegations of misconduct.
Forced resignation or not?
In evaluating the case, the FWC applied the principles established in previous decisions regarding forced resignations. The Commission referred to the following standard:
"[T]here must be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether 'the act of the employer [resulted] directly or consequentially in the termination of the employment.'"
The FWC found that the employer did not intend to force the worker to resign. The general manager's repeated attempts to resolve the issues between the worker and the construction manager showed the employer's desire to retain both employees.
Furthermore, the Commission did not accept that resignation was the probable result of the employer's conduct. The FWC noted:
"[The worker] was not forced to take any of these steps due to the conduct of [the employer]. [The worker] ultimately took these various steps because he did not want to work under the direction of [the manager]."
In conclusion, the FWC stated:
"I find that [the worker] was not 'dismissed' by [the employer] within the meaning of s.386(1) of the FW Act. This finding means [the worker] cannot establish he was unfairly dismissed, and a remedy cannot be awarded to him."
This decision highlights the challenges in proving constructive dismissal and the high threshold required to establish that an employee was forced to resign. It also emphasizes the importance of proper management of workplace conflicts and clear documentation when addressing performance issues.
