Worker claims he was bullied into resigning
The Fair Work Commission (FWC) recently dealt with a case involving a senior lecturer at a university who claimed unfair dismissal, while the university maintained the lecturer had voluntarily resigned.
This case highlights the complexities that can arise when employment relationships break down, especially in flexible work arrangements.
It underscores the importance of clear communication and proper documentation in employment matters, particularly when it comes to resignations and remote work agreements.
A dispute over resignation vs. dismissal
The worker, a senior lecturer in the School of Theology since 2011, had been approved to work from an overseas location for the first semester of 2022.
In May 2022, he requested an indefinite remote working arrangement to deal with a personal situation in the Philippines. When this was refused, he sought long service leave, which was also denied due to short notice.
Feeling he "desperately needed to be abroad" for the second semester of 2022, the worker initially submitted a notice of resignation.
However, further discussions with his manager led to an agreement allowing him to work remotely for that semester, followed by annual and long service leave, after which his resignation would take effect.
On 17 June 2022, the worker sent an email stating:
"After due reflection and consideration of my personal circumstances, I wish to register my intention to take early retirement. Please accept this email as my official notice signalling my intention to resign from service at [the university] after exhausting my leave balance that I will begin taking as of 2 January 2023."
Employer's perspective vs. worker's claims
The university said that the worker’s email reflected the agreement reached between the parties. They argued that the worker had expressed an intention to resign in May 2022 and confirmed it in June 2022, with the understanding that he would teach abroad for the second semester of 2022 and then take annual and long service leave in 2023 before his resignation took effect.
The worker, however, claimed that he had agreed to stay on if allowed to teach from abroad. He believed that since his request to teach abroad in the second semester was approved, his initial resignation was "effectively cancelled and invalidated".
He also maintained that a resignation was only 'formal' when he personally completed an Employee Separation form in the university's online system.
Second resignation and alleged coercion
In February 2023, after a change in management, the university sought clarification on the worker's resignation status. The new dean emailed the worker, outlining details of the resignation and requesting a meeting to clarify the situation.
The worker responded by forwarding an email he had sent to his previous manager, indicating he wanted to clear his leave first and would submit his retirement request later.
On 6 March 2023, following further communication with the new dean, the worker sent another email confirming his resignation:
"This email is to inform you of my wish to resign from [the employer] upon exhausting all the leave that I am entitled to."
The worker later argued that this email was sent under duress, claiming he felt "bullied" and that his leave requests were being held hostage. He stated, "I desperately needed my leave approved. The leave had already begun by then and remained unapproved despite my applying for them four months earlier."
The university denied any coercion, with a senior staff member testifying that there was no connection between the resignation request and leave approval.
The FWC's decision
The FWC found that the worker had voluntarily resigned and was not dismissed. The Commission emphasised that resignation is a unilateral act that doesn't require employer approval:
"An employee can resign from their employment at any time. It is a unilateral act, that requires no approval by the employer. The existence of internal administrative processes does not override an employee's right to choose to end their employment."
This highlights the importance of clear communication in employment matters. The FWC also noted that the worker's subjective intentions were not the determining factor:
"The question of whether a resignation did or did not occur does not depend on [the worker's] subjective intention or understanding. Rather, it depends on what a reasonable person in the position of the parties would have understood was the position, based on what each party had said or done, in light of the surrounding circumstances."
Lastly, the FWC's decision emphasised the binding nature of clear resignation notices:
"[The worker] voluntarily resigned on 17 June 2022, as part of an agreement to enable him to be approved to work overseas from an off-campus location. He confirmed on 24 February 2023 that he would submit the Employee Separation Form imminently. He confirmed his resignation on 6 March 2023 in his email to [the employer]."
This case serves as a reminder for both employers and employees to maintain clear records of agreements and communications regarding employment status, especially when flexible work arrangements are involved.
It also highlights the importance of understanding the legal implications of resignation notices and the limits of internal administrative processes in determining employment status.
