FWC: Was it forced resignation?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a project manager who resigned from his employment during a workplace investigation.
The key issue was whether the worker's resignation amounted to a dismissal under the Fair Work Act. In this case, the FWC had to determine if the employer's actions left the worker with no choice but to resign.
The worker was employed as a project manager in March 2021. In mid-2023, issues arose regarding the payment of a Site Uplift Allowance (SUA).
The worker and several employees received the SUA in their contracts, but two of their co-workers “were stood down over the SUA issue.” Due to this incident, the worker said that there was “unrest among employees.”
The worker called a meeting with the managing director and other staff members to discuss the matter. During the meeting, the managing director expressed concerns about the worker's conduct and the alleged “toxic work culture” on his project site.
Among many allegations, the employer said it received a complaint from another employee regarding the approval of timesheets by a project manager, “when the project manager knew, or ought to have known, that the information stated was false and/or in contradiction of the [employer’s] policies and procedures.”
Following the meeting, the worker was immediately suspended, pending an investigation into his conduct. The worker claimed that he was left in the dark about the reasons for his suspension for weeks.
However, the FWC found evidence suggesting that the worker was informed about the investigation and how it related to his alleged interference with the site visit and investigation conducted by another employee.
In October 2023, the employer sent the worker a detailed show cause letter outlining the allegations against him.
The letter alleged that the worker had impeded the investigation by redirecting and/or preventing the investigating employee from her inquiries. The worker was given an opportunity to provide a written response and attend a show cause meeting.
On November 22, 2023, the worker sent an email to the employer, tendering his resignation.
In the email, he stated:
"The company's conduct and course of conduct has forced me to do this as I had planned on a significant career with [them]. This conduct has proven to me that I can't expect procedural justice or natural justice,” he said.
“Management engaged in significant bullying and harassment by standing me down on the 4th [of] August 2023 without any reason or justification," he added.
After considering the evidence and submissions from both parties, the FWC found that the worker was not dismissed within the meaning of the Fair Work Act.
The FWC determined that the employer had not repudiated the employment contract, and the worker had not been forced to resign due to the employer's conduct.
The FWC highlighted that the employer had reasonable concerns that led to the investigation into the worker's practices.
The worker was stood down on full pay pending the investigation, and the employer's solicitors communicated with him throughout the process. The worker also participated in an interview with the investigator.
Furthermore, the show cause process had commenced but did not progress at the worker's request due to some health concerns. Hence, the process was incomplete when the worker resigned.
Ultimately, the FWC found that the employer's actions in this case did not amount to repudiation of the employment contract or forced resignation.
Consequently, the worker's application was dismissed, as he had not been dismissed within the meaning of the Fair Work Act.
