FWC examines whether changed behaviour during salary talks forced worker to resign
The Fair Work Commission (FWC) recently dealt with a case examining whether a worker's resignation qualified as dismissal under the Fair Work Act 2009. The case centred on allegations of changed workplace behaviour and award underpayment concerns following a pay rise request.
The worker lodged a general protections application involving dismissal, claiming she was forced to resign due to her employer's conduct. Her employer objected to the application, arguing that no dismissal had occurred as defined by the Fair Work Act 2009 and that they were working through a standard salary review process.
The Commission had to determine whether the worker resigned voluntarily or whether the employer's conduct effectively forced her resignation, which would constitute dismissal under the Act.
A 19-year-old warehouse and sales support worker had initiated discussions with her company directors about a pay rise in August 2024. In their meeting, the directors offered a 10% increase. The worker became visibly upset during this meeting, as this matched what she had already expected to receive upon turning 20 years old later that month.
The next day, she submitted a detailed written request comparing her current pay to award rates and requested $65,000 annually, citing her duties and regional market rates.
During this period, she independently reviewed her employment contract and consulted the Fair Work Ombudsman about her entitlements.
Another employee testified about changes in workplace dynamics, noting there was less interaction between all parties after the pay rise meeting. This witness observed the worker crying in her office because she felt the directors were "distant."
Thirteen days after her initial request, the directors responded with an offer of $48,810.06 annually. After receiving this response, the worker left work citing illness and submitted her resignation that evening, stating in her letter: "this situation and the behaviour shown towards me over the last week and half has unfortunately brought me to the end of my employment."
The external human resources firm Focus HR, responding on behalf of the directors, acknowledged an underpayment of $4,915.91, describing it in their correspondence as "an honest mistake and not intentional."
The Commission found that while the worker was upset about the situation, the evidence didn't support a finding of forced resignation: "I accept that at least [one director's] demeanour towards [the worker] changed somewhat following her written request... I accept [the worker] was upset. I do not accept that the change was such as to leave her with no effective choice to resign."
The employment contract referenced a non-existent "Storage & Warehousing Award," creating confusion about award coverage. Initially, the worker argued the Vehicle Repair, Services and Retail Award 2020 applied, but later claimed coverage under the Storage Services and Wholesale Award 2020.
Role classification added another layer of complexity, with the worker describing her position as "Senior Warehouseperson" while the employer maintained it was "Warehouse & Sales Support."
The Commission explained that such award-related concerns, including potential underpayment, don't automatically justify resignation: "[the worker] may be able to bring a claim for contravention of a Modern Award, elsewhere. That does not necessarily mean that [the worker] has been dismissed. The bare fact of an underpayment does not establish conduct that leaves an employee with no effective choice but to resign."
The Commission clarified fundamental principles about resignation and dismissal, stating: "If [a worker] asks for a payrise, [the employer] refuses, and [the worker], being dissatisfied, resigns, that is not enough to establish termination at [the employer's] initiative."
The decision emphasised that even when award underpayment exists, workers have alternatives to resignation: "employees can and do pursue underpayment claims while still in employment."
The Commission ultimately dismissed the application for want of jurisdiction, finding insufficient evidence that the employer's conduct left the worker with no effective choice but to resign.
The decision noted that while workplace dynamics had changed and award interpretation issues existed, these circumstances didn't meet the threshold for forced resignation under the Fair Work Act 2009.
