FWC: Is it forced resignation or unfair dismissal?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case that involved a worker who resigned from his job after a heated meeting with his employers.
The worker claimed that his resignation was not voluntary and that he was forced to resign due to the conduct of his employers.
In this case, the FWC had to determine whether the worker's resignation was genuinely his own decision or if it was a result of the employers' actions, effectively amounting to a dismissal.
The contested meeting
The worker was employed as a project manager by the employer company. During his employment, he raised concerns about his working hours and the lack of a formal employment contract.
In response, the employers arranged a meeting with the worker on December 21, 2023, to discuss these issues. The events that transpired during the meeting were the focal point of the case. The worker claimed that the employers conducted themselves in a manner that left him with no choice but to resign.
He alleged that the employers interrogated him and showed little interest in addressing his concerns.
The employers, on the other hand, maintained that the meeting was professional and that they had no intention of forcing the worker to resign. They claimed that the worker's resignation was unexpected and voluntary.
During the meeting, the employers raised several concerns about the worker's performance, as evidenced by their statement:
"Towards the end of the meeting, [the worker] appeared defensive and asked the following question: ‘Is this a conversation about addressing my issues or a conversation about the end?’ I was surprised by his question because I had not come to the meeting thinking that it would be ‘the end.’ Nor did our conversation during the meeting indicate to me that it would be ‘the end.’ I hadn't even mentioned disciplinary action at all, let alone ending his employment."
The FWC's consideration
The FWC had to carefully examine the evidence presented by both parties to determine the true nature of the worker's resignation. They considered factors such as the conduct of the employers during the meeting, the worker's state of mind, and the events leading up to the resignation.
The worker argued that the employers' failure to provide a written contract and pay for overtime hours, which he believed to be a contractual entitlement, contributed to the circumstances that led to his resignation.
"The [worker] submitted that although the [employers] had intended to procure his resignation, it was not necessary for him to establish this [since] constructive dismissal can be established without an actual intention to repudiate the employment contract, by reference to the effect that circumstances would have on a reasonable person," the FWC said.
Is it dismissal or resignation?
After examining the evidence and arguments presented by both parties, the Deputy President found that the worker's resignation did not amount to a dismissal under either s.386(1)(a) or s.386(1)(b) of the Fair Work Act.
He noted that for a dismissal to be found under s.386(1)(a), there must have been a "heat of the moment" resignation or a resignation where the employee was in a compromised mental state. The worker's actions, such as confirming his resignation in writing seven days after the verbal resignation and not attempting to withdraw it, indicated that this was not the case.
The FWC examined the worker's claim that the employers' failure to pay overtime amounted to a repudiatory breach of his employment contract, effectively forcing his resignation.
While acknowledging the worker's desire to be paid for overtime and the discussions surrounding this issue, the Deputy President found that the payment of overtime was not a firm term of the contractual arrangements.
"As such, and consistent with the submissions of the Respondents, I find that, at its highest, the issue of overtime was unresolved. Although the [employers] may have preferred that the [worker] simply accept their "time in lieu" approach to extra hours, I find that they were aware, from at least 5 December 2023, that the [worker] was disputing this part of his remuneration. However, I find that this is the extent of the issue: that it was a matter in dispute."
The employers’ conduct
The FWC also considered the conduct of the employers during the meeting on December 21, 2023. While expressing some concerns about the wisdom of the methods adopted by the employers, the Deputy President found that their conduct did not amount to behaviour that forced the worker’s resignation..
"While I note that the process used was perhaps less than ideal, there does not appear to be any evidence that the [employer] was conveying an intention to discipline the [worker] much less terminate him based on the allegations it was making about his conduct. As such, I do not accept that he was being ‘backed into a corner’ or at the very least not intentionally."
The Deputy President also noted that the worker, as an experienced person who had run his own business for many years, had practical and reasonable alternatives available to him instead of resigning.
"I find that the [worker] did have options available to him in lieu of resignation. He had the option of seeking to return the discussion to his concerns to determine what action – if any – the [employer] was intending to take with respect to, for example, his overtime. It may well be that he did not get the response he wanted, but it was open for him to further explore that issue and propose alternative solutions,” the decision said.
The FWC’s decision
Ultimately, the FWC found that the worker's resignation was not forced by the actions of the employers.
As there was no termination at the initiative of the employer, the FWC determined that it did not have jurisdiction to deal with the matter, and the worker's application was dismissed.
"As such, I find that the [worker’s] resignation was not forced by the actions of the [employer]. As there has been no termination at the initiative of the [employer], the FWC does not have jurisdiction to deal with the matter and the application will be dismissed." Consequently, the FWC dismissed the application.
