Director says manager wasn't 'traveling enough' for position
The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged that she was dismissed by her employer, a supplier of consumer goods distributed and sold in grocery stores across Australia, in breach of the Fair Work Act 2009 (Cth).
The employer objected to the application, arguing that the worker had resigned from her employment and there was no dismissal within the meaning of the Act.
The worker, who was employed as a national sales manager, had a preference for working from home and was allowed to do so for three days per week during the first seven months of her employment, despite it not being formalised in her contract.
Her role was a senior position that required her to report to a director based in Auckland, New Zealand, and her employment contract stipulated that her place of employment was the employer's Sydney office, with no provision for a work-from-home arrangement.
Issues arise in the worker’s employment
In November 2023, issues arose with the worker's employment, including concerns about her working from home for three days per week and her availability while doing so.
The director expressed these concerns in a series of emails and directed the worker to work from home only two days per week.
Further issues emerged in mid-November 2023 relating to complaints about the relationship between the employer and one of its major clients, Metcash, which purchased products from the employer for sale in independent retail stores around Australia.
During discussions that followed, the worker, who is a single mother, informed the director that she preferred not to travel on trips that involved being away for more than one night at a time.
According to records, this preference, along with her working-from-home arrangement, became a point of contention between the worker and the employer.
Discussions and changes in the worker’s role
In a series of emails in February and March 2024, the worker and the director discussed various operational matters associated with the worker's role, including her need to travel to meet clients and her availability while working from home.
The employer also hired a Queensland state sales manager to provide the worker with assistance in looking after clients in Queensland, which would reduce both her workload and her need to travel. This decision was communicated to the worker in an email on 4 March 2024.
The worker raised concerns about changes to her working-from-home arrangement, which had been cancelled, and asked for them to be reinstated. The director responded that while she was busy at the time, she would arrange a meeting and instructed the worker not to work from home in the meantime.
The worker then wrote: "I feel that I have no choice to write this letter, as [there] has been a marked change in the attitude and behaviour toward me and the performance of my duties since I shared the Metcash feedback with you on 18 Dec 23. Due [to] the change in the way I have been dealt with I have been left with no choice but to tender my resignation as it is impacting my ability to effectively perform my duties and my ability to manage my mental health."
The worker’s resignation
On 20 March 2024, the worker sent an email tendering her resignation, stating that she felt she had no choice due to the change in attitude and behaviour towards her since she had shared feedback from Metcash in December 2023.
She alleged that this change had impacted her ability to effectively perform her duties and manage her mental health.
The worker filed an application with the FWC, alleging that the employer had contravened sections 340 and 351 of the Fair Work Act by dismissing her due to her relaying a complaint from Metcash and discriminating against her due to her carer's responsibilities and inability to travel for long periods for work. The remedy sought in the application was compensation.
The FWC’s consideration
The FWC considered the definition of "dismissed" under the Fair Work Act, which includes situations where a person has resigned from their employment but was forced to do so because of conduct or a course of conduct engaged in by their employer.
The FWC summarised the position under the Fair Work Act, stating that a resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal if the employer engaged in the conduct with the intention of bringing the employment to an end or if termination of the employment was the probable result of the employer's conduct, such that the employee had no effective or real choice but to resign.
The FWC found that the matters raised by the worker, such as the cancellation of her working-from-home arrangement, the restriction of her work duti es, changes in work processes, and the employer's attitude towards her ability to travel due to care arrangements for her son, did not amount to conduct that forced her to resign.
The evidence suggested that there were issues associated with the way the worker performed her role, and these issues became evident in November 2023. The employer, through the director, was working with the worker to address these concerns.
"I am of the view that the matters in the applicant's list of conduct, whether taken together or separately, do not amount to conduct that forced [the worker] to resign. My view of the evidence is that there were issues associated with the way [the worker] performed her role. Those issues became evident during November 2023. [The employer], through [the director], was working with [the worker] to address them," the decision said.
Was it forced resignation?
The steps proposed by the employer, including asking the worker to work in the office more, provide weekly reports, and appointing a manager in Queensland, did not amount to changing the worker's role, micro-managing her, or undermining her position.
The FWC did not find evidence of any refusals to discuss matters with the worker. Instead, the director's communications focused on working through issues and increasing the frequency of communications to improve the way the organisation functioned.
“The steps proposed, such as asking [the worker] to work in the office more, provide weekly reports, and appointing a manager in Queensland did not amount to changing [the worker's] role, micro-managing her, or undermining her position. I do not see in the evidence any refusals to discuss matters with [the worker]. To the contrary [the director's] communications focussed on working issues through and increasing the frequency of communications as a means of improving the way the organisation functioned,” the FWC said.
Although there may have been a change in the tone and demeanour the director used in discussions with the worker, the FWC did not consider this to be a matter that would lead to the conclusion that the company was forcing the worker to resign.
The FWC also did not find evidence of a threat to reduce the worker's remuneration, and the director's evidence indicated that it was not being considered.
"There may have been a change in the tone and demeanour [the director] used in the discussions with [the worker]. I do not consider that to be a matter that would lead to a conclusion that the company was forcing [the worker] to resign. I do not see a threat to reduce her remuneration. [The director's] evidence was that it was not being considered."
The FWC noted that the director did not take the view that the worker was at fault in relation to the issues that arose. However, the director did have concerns about the worker's ability to work effectively when working three days per week from her home and, at times, seemed frustrated about that issue.
The director also had concerns about the worker not travelling enough to meet the requirements of her national role. Despite these concerns, the FWC did not regard the raising of these issues as amounting to conduct that forced the worker's resignation.
"I also note that [the director] did not take the view that [the worker] was at fault in relation to the issues that arose. She did have concerns about [the worker's] ability to work effectively when working 3 days per week from her home,” the FWC said.
At times she seemed frustrated about that issue. She also had concerns about [the worker] not travelling enough to meet the requirements of her national role. However, I do not regard the raising of those concerns as amounting to a conduct that forced a resignation,” the FWC added.
Ultimately, the FWC found that the worker's resignation was not a forced resignation as contemplated by the Fair Work Act and, therefore, there was no dismissal.
The FWC noted that the worker faced a difficult decision, but it was a decision she made based on what she considered the best decision in her circumstances. The employer's conduct played a role in that decision, but the FWC did not consider it to meet the description of forcing her resignation.
As a result, the worker could not apply to have the FWC deal with a dismissal dispute, and her application was dismissed.
