'We needed to restructure due to financial difficulties,' says employer
The Fair Work Commission (FWC) recently dealt with the case of an HR manager who claimed forced resignation after the employer removed recruitment duties in her role.
The employee claimed that she was not consulted about the “substantial change” in her position, and thus, suffered constructive dismissal.
When she started her employment, the employee reported to the employer’s general manager. Her primary role was in HR and Compliance for the Valley Healthcare Group of companies.
Due to the departure of the general manager, she directly reported to the managing director and owner.
In September 2022, the employee said the owner was bullying her after being told her position was being modified and that there was no longer a requirement for her to perform the role of HR Manager for South Coast Facility Services and that she would no longer be involved in any recruitment activity for the business.
She then wrote a letter to the employer to file a formal complaint, and part of it stated:
“Your recent decisions to take away my managerial role of the Recruitment Team has been unjust and unfair. At no time have I ever said that I had an issue about managing the team or my workload. I have simply stated that I am very busy and have a lot on my plate each week, in comparison to other Managers. You have for some weeks now made it difficult for me to manage the team, by having the Team Leader report to you instead of me.”
“You have also asked to be involved in notifications regarding new hires, so that you are aware of the recruitment stats and still insisted that I submit formal reports to you on a Monday each week. I request that your decision be reconsidered and allow me to retain what was agreed some months ago to be a suitable function of my role and allow me to continue to manage the Recruitment Team.”
The owner wrote back and explained that there were changes in the business’ organisation that changed the employee’s role:
“In effect, we are reversing a decision to combine operational functions of our businesses and moving the recruitment team back into control of one person being the General Manager. We have also chosen to abolish the executive team and just have the two managers of our two businesses report to me… So we have more control of our businesses moving forward.”
“The business needs to restructure due to its financial viability and has now commenced on a formal restructuring plan to change the structure to be able to move forward in a profitable way.”
The worker then responded to the owner and said:
“So, in effect you are taking adverse action against my position as HR Manager, by making sure that I no longer have any significant function within any of the businesses.”
The owner replied with:
“You are still Human Resources Manager… You do still have significant responsibilities for the business, all we have done is reverted the reporting lines back to what they were prior to merging operational functions of the business.”
Essentially, the employee questioned why she had not previously been consulted on “this significant change to her role.”
After further exchanges with the owner and its senior management, the employee emailed and expressed her desire to resign, adding that her resignation was due to the employer’s “serious breach in her contract.”
She then filed for unfair dismissal.
HRD previously reported on the case of a manager who claimed forced resignation after questioning the employer’s policy of retaining tips from customers.
In another case, a worker also claimed she was forced to resign after returning from stress leave.
The employee said the employer “has failed to establish how any financial difficulties being suffered by the business at the time” could justify its decision “to act without consultation in altering the duties of her position.”
The FWC found the employee complained about her workload since it “doubled” when another employee had left the business. The evidence showed that she “could not meet the weekly reporting expectations” of the owner.
“The managing director/owner would be failing in his duty as a manager if he did not take steps to alleviate the workload of the employee after she had made a complaint,” the FWC said in its decision.
As it turned out, the owner had also received complaints about the management performance of the employee on the recruitment team.
So the management’s decision to alter her duties was caused by several factors: financial difficulties, the employee’s complaints about her workload, and her overall performance.
“The employee was not being demoted. Her title was not changing. There was no reduction in her hours of work or her salary. She was going to report to a new General Manager due to changes at the senior level of the employer, but a change in a reporting line does not constitute constructive dismissal,” the FWC explained.
Thus, the commission said that the change in the employee’s duties was implemented “due to the needs of the business and the complaint made by the employee regarding her excessive workload.”
Ultimately, it said that the employer did not terminate her employment at its own initiative, and there was no forced resignation or unfair dismissal.
