FWC looks into worker's intention to resign amid allegations against employer
The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged he was forced to resign from his employment due to the conduct of his employer.
The worker, who was employed as a workshop manager, claimed that he was subjected to racial bullying and harassment, and that an incident report prepared by his employer wrongly blamed him for an altercation that occurred in the workplace.
In this case, the FWC had to determine whether the worker's resignation amounted to a dismissal under the Fair Work Act 2009 (Cth) (FW Act).
The decision resolved the question of whether the employer's reliance on the worker's resignation was reasonable and whether the worker was forced to resign.
Background of the case
The worker, of Nepalese ethnicity, was employed by an Aboriginal and Torres Strait Islander corporation that provides services to communities in the vast expanse of the northeast of the Northern Territory, Australia.
According to records, he started as a workshop manager in September 2023 and worked for three months before his employment came to an end.
During his employment, the worker reported to an area manager and was assisted by two other employees in the workshop. While he did not report to the employees who worked in the store, there was frequent communication between them as they were under the same roof.
The workplace incident
On 15 December 2023, an altercation occurred in the store office involving the worker and a non-employee from the community.
The incident was reported to the police by the worker, which led to an argument with another employee who questioned why he had spoken to the police rather than reporting the incident to the area manager.
A few days later, the worker discovered an incident report prepared by the store manager that he believed wrongly attributed blame to him. Feeling stressed and unwell after reading the report, the worker left work and went to the township medical clinic.
The resignation and its consequences
On the morning of 19 December 2023, the worker sent a text message to the area manager stating, "I quit. Next time plz make sure you put in contract that all whites are to be freely served. Thank you."
The area manager, who was not entirely surprised by the message, decided to discuss the text with the worker. In a telephone conversation that followed, the worker said, "I can't do this anymore, I have paid for the cigarettes. In relation to the incident report, it is all lies."
The area manager responded, "It's all factual information, it's not for any reason other than record-keeping purposes. I accept your resignation, and I will need to speak with others to arrange for your travel out of community."
The worker then left the township and travelled to Adelaide, where he sought medical attention for what he claimed was a panic attack. The employer then processed his resignation and paid out his accrued entitlements.
The parties’ arguments
The worker submitted that he was forced to resign due to the conduct or course of conduct by the employer, which included:
"[A]n allegedly unsafe and unsupportive workplace, including being subjected to racial bullying and harassment; an incident report that allegedly contained ‘lies’ and wrongly blamed him for the 15 December incident; and being (according to his evidence) told or asked to resign by the area manager."
The employer, on the other hand, argued that the worker had resigned of his own accord and that reliance on his resignation was not unreasonable. It refuted the worker's claim that he was told or asked to resign by the area manager or any other manager.
The employer also rejected the assertion that the incident report was inappropriate or unfair, stating that it was necessary for record-keeping purposes and that no disciplinary action had occurred or was foreshadowed.
The worker intended to resign
After considering the evidence and submissions, the FWC made several key findings regarding the reasonableness of the employer's reliance on the worker's resignation and whether the worker was forced to resign.
The FWC noted that the area manager was not entirely surprised by the worker's "I quit" text message, as she believed that the worker had been unhappy in dealings with store employees and some others in the community based on earlier discussions with him.
This suggests that the employer had some context for the worker's resignation and did not consider it to be entirely out of the blue.
Furthermore, the FWC found that the incident report, which the worker claimed contained lies and unfairly blamed him, was prepared for record-keeping purposes and did not result in any disciplinary action against the worker.
The worker confirmed his resignation
“[The worker]'s resignation was made impulsively and in frustration. It had been the build-up in his mind of negative interactions with store employees and some in the community over preceding weeks, including the incident on 15 December (which included both a community member and a store employee). I also accept [the area manager]'s evidence that she had, separate to that incident, detected from regular discussions with [the worker] a degree of unhappiness on his part as he had sought to adjust to remote living and working in the township and with other employees. Reading the incident report on the morning of 19 December 2023 was clearly the trigger for the resignation. It was the straw that broke the camel's back as far as [the worker] was concerned,” the FWC said.
“In this sense, it could be said that the ‘I quit’ text to [the area manager] was an impulsive act taken in the heat of the moment especially taking into account that [the worker] had felt upset when he did so,” it said.
“I take into account that, during the afternoon of 19 December 2023 and in the context of seeking employer support to travel, [the worker] informed [another co-worker] that his stress was high and that he would think about things further once he was ‘cooled.’ However, by then his resignation had been made and had been accepted by his area manager,” the FWC said.
“Materially, by then [the area manager] and [the worker] had spoken. [The area manager] did not action the resignation purely on the basis of the ‘I quit’ text. Rather, [the area manager] initiated a telephone call to [the worker] and spoke to him about it. Albeit briefly, she provided him an opportunity to confirm his intention and reasons. [The worker] did so,” the FWC added.
The FWC’s decision
The FWC said that the employer's conduct in this regard was not found to be unreasonable or a factor that forced the worker to resign.
Regarding the worker's allegation that he was told or asked to resign by the area manager, the FWC preferred the evidence of the latter, who refuted this claim.
The FWC also noted that the worker's own evidence about being forced to resign was based on generalisations and opinions about the motives or conduct of others, which led the FWC to treat those aspects of his evidence with some caution.
Ultimately, the FWC concluded that the worker's employment ended by resignation on 19 December 2023 and that he was not forced to resign due to the conduct of his employer. The FWC found that the employer's reliance on the worker's resignation was not unreasonable given the circumstances.
