Request for additional training leads to 'forced resignation'

The Fair Work Commission (FWC) recently dealt with a case involving a casual worker's resignation and subsequent claim of constructive dismissal.

The decision highlighted key issues around performance management, casual conversion, and what constitutes a forced resignation under employment law.

In this case, a cardiac technician engaged in a dispute with her employer over casual conversion and performance concerns, ultimately resigning but claiming she was forced to do so.

The FWC had to determine whether the resignation was truly voluntary or if the employer's conduct left the worker with no real choice but to resign.

Casual conversion request

The worker, a casual cardiac technician employed since November 2022, approached her employer in November 2023 requesting conversion to permanent part-time employment.

This sparked a series of events that led to tension between the parties:

• The worker initially approached the staffing coordinator about casual conversion on 22 November 2023.
• The employer failed to respond within the required 21-day timeframe.
• On 5 December 2023, the worker sent a formal request for casual conversion to the general manager.
• On 12 December 2023, the general manager held a video conference with the worker to discuss the request.
• The employer refused the casual conversion request, citing a shift in business strategy and performance concerns.
• The worker filed applications with the FWC regarding the casual conversion dispute and alleged general protections contraventions.

Performance concerns and medical issues

During the 12 December meeting, the employer raised performance issues for the first time:

• The general manager cited an anecdotal comparison between the worker's report regeneration requests and those of full-time, longer-serving colleagues.
• The worker disputed these concerns, stating she didn't believe her regenerations were high.
• Data later produced showed the worker's regeneration rate was significantly higher than her peers.

The day after this meeting, the worker became unwell. She reported experiencing a debilitating migraine and functional neurological dysarthria.

The worker then informed the employer she was unable to work due to these health issues. She remained unfit for work from mid-December 2023 through to her resignation in January 2024.

Events leading to alleged ‘forced’ resignation

In January 2024, a conciliation conference was held at the FWC regarding the worker's applications. Key points from this conference included:

• The worker had been unwell and unable to work since mid-December.
• No shifts were currently rostered for the worker.
• The employer reiterated the need for further training before more shifts would be allocated.
• The worker requested a support person be present and the training be recorded, which the employer had not agreed to.
• The worker offered to resign in exchange for a settlement payment, which the employer rejected.

Following this conference, the worker sent emails stating she considered herself terminated and was resigning due to constructive dismissal. She offered not to pursue claims if the employer agreed to her settlement terms.

The employer rejected this, maintaining there had been no termination at their initiative. The worker then proceeded with a general protections application involving dismissal.

Was it forced resignation?

The central question for the FWC was whether the employer's conduct forced the worker to resign, or if the resignation was voluntary.

The FWC emphasised:

"The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. The line, however, must be 'closely drawn and rigorously observed'."

In assessing this, the FWC considered whether the employer's actions were intended to end the employment or would likely have that result.

The Commissioner noted:

"I am not satisfied that anything said by the [employer] at the conference before me on 16 January 2024 was of such a nature that resignation was the probable result, or that [the worker] had no effective or real choice but to resign."

Voluntary resignation

Ultimately, the FWC determined the resignation was voluntary and not forced by the employer's conduct. Key factors in this decision included:

• The worker was unwell and not fit for work at the time, so lack of rostered shifts was not unreasonable.
• The employer's request for further training was justified given the performance data.
• The worker had not provided availability for the requested training.
• A further conciliation conference was scheduled, indicating the employment relationship was ongoing.

The Commissioner concluded:

"I am satisfied that [the worker's] resignation was voluntary, and not due to conduct or a course of conduct (including omission) engaged in by the [employer], either prior to 16 January 2024 or during the conference on 16 January 2024."

"Having reviewed the statistics relevant to [the worker's] performance, the [employer] was acting reasonably by requiring her to participate in training with [the managing director], despite her objections that any performance management of her was baseless."

"[The worker] did not need to do what she did on the evening of 16 January 2024. If she had taken no action at all, she would have continued to have been employed, albeit with no scheduled hours of work at that stage."

The FWC’s findings emphasise that employers can take reasonable performance management steps, including requiring further training, without this constituting conduct forcing a resignation.

The case also highlights the importance of clear communication and following proper processes when addressing performance concerns with casual employees.