Return-to-work dispute tests boundaries of workplace conduct and constructive dismissal
The Fair Work Commission (FWC) recently dealt with a dispute under section 365 of the Fair Work Act 2009 where a worker claimed she was forced to resign after returning from maternity leave.
She alleged her employer failed to return her to her pre-maternity leave role and created conditions that ultimately led to her resignation.
The case examined whether the worker's resignation constituted a dismissal under section 386 of the Fair Work Act 2009, which addresses forced resignation claims. The employer objected to the application, arguing that the worker had resigned voluntarily.
The worker began as a part-time administration officer in September 2021, transitioning to full-time work in March 2022.
After taking parental leave in April 2023, she returned in January 2024, initially working full-time for two weeks before moving to part-time arrangements working five days per fortnight.
While the worker claimed she wasn't provided with adequate resources upon return, the Commission found this to be an exaggeration, noting evidence that she had access to a shared office, desk, and was the only employee with a laptop.
The new director, who joined during the worker's parental leave, hadn't formally discussed her return-to-work arrangements. The only discussion about her return occurred informally at a Christmas party with another company director.
A significant incident occurred on 19 February 2024, when the worker covered another employee's shift during extremely hot conditions with insufficient office cooling.
The Commission found that this led to a confrontation when the director attempted to discuss the worker's previous early departure.
According to the decision: "I find that what had occurred was a confrontation between [the worker] and [the director], in which both were equally culpable of inappropriate workplace behaviour."
The Commission determined that "it was appropriate for management to seek to ask [the worker] about why she had left earlier on a prior occasion. While [the director] raised his voice when [the worker] had also done so, it cannot be said that he questioned her or asked her to respect him with the intention of making her resign."
During a 20 February 2024 office organisation meeting, the director made a comment about the worker having "the biggest cajones in the company."
The Commission noted that while "The comment was not appropriate and the intended meaning could have been better expressed... [the director] made the comment with an intent about what role [the worker] could perform in the workplace, not with the intent that she should leave it."
Following these incidents, the worker received a formal written warning on 23 February 2024 addressing three policy breaches. She last attended work on 7 March 2024 before taking carer's leave and eventually resigning on 23 May 2024.
The Commission examined whether the resignation constituted a dismissal under section 386(1)(b) of the Fair Work Act 2009, which required evidence that the employer's conduct left the worker with no effective choice but to resign.
In dismissing the application, the Commission found: "While overall [the employer's] conduct was unsatisfactory, I do not consider that individually or together it was conduct engaged in with the intention of forcing [the worker] to resign, nor that it left [the worker] with no choice but to resign."
The Commission concluded: "This is a case in which [the employer] needed better human resources support. Given their size, [the director] needs much more support in his role managing team members, including obligations relating to the entitlements of part-time employees and of employees returning from parental leave. None of those failings however lead me to conclude that [the worker] was forced to resign."
