Was the worker forced to resign because of the employer's actions?
The Fair Work Commission (FWC) recently dealt with a case involving a worker's claim of unfair dismissal and an employer's jurisdictional objection.
The matter centred on whether the worker's resignation constituted a dismissal under the Fair Work Act 2009. The worker argued that she was effectively dismissed during a meeting with management, despite having submitted a resignation letter the previous day.
She also claimed that ongoing workplace issues had forced her to resign, leaving her with no real choice but to leave her position.
Fired during a meeting with management?
On 8 August 2024, a senior operations manager filed an application with the FWC. She claimed her employment ended on 7 August 2024 in a way that violated her workplace rights. The employer objected, saying the worker wasn't dismissed as defined in section 386 of the Fair Work Act.
The events in question happened on 6 and 7 August 2024. On 6 August, the worker gave her manager a resignation letter with two weeks' notice. The next day, the worker met with her manager and the CEO. They discussed various topics, including the worker's obligations after leaving the job.
The worker said she was dismissed during the 7 August meeting. The employer maintained that the job ended because of the worker's resignation.
Dismissal during meeting or resignation
The main question was whether the worker was dismissed as defined in section 386 of the Fair Work Act. This section says dismissal can happen in two ways:
1. When the employer ends the employment
2. When the worker is forced to resign because of the employer's actions
The worker argued she was effectively dismissed on 7 August when she was told her services weren't needed anymore. She also said she was forced to resign because a colleague had been harassing and bullying her for months.
The employer disagreed. They presented evidence suggesting the worker had planned to resign and likely accepted a job with a competitor before resigning.
Resignation or dismissal
The FWC looked at the evidence from both sides. It found the employer didn't dismiss the worker because she had already resigned on 6 August. The FWC explained:
"Termination at the initiative of [the employer] means a termination brought about by [the employer] and which is not agreed to by [the worker]. A termination of employment can occur at the initiative of [the employer] even if it is not done by [the employer]. It requires the action of [the employer] to be the principal contributing factor which leads to the termination of the employment relationship."
The FWC decided that the main reason for the job ending was the worker's resignation letter, not anything the employer did.
Examining the forced resignation claim
The FWC also considered whether the worker was forced to resign because of the employer's actions. The worker said there was ongoing harassment and bullying, but the FWC found little evidence to support this.
The FWC noted that previous complaints had been investigated and resolved to the worker's satisfaction months before she resigned.
About the specific incident on 6 August that supposedly led to the resignation, the FWC said:
"Even if I am wrong in my conclusion as to [the worker's] resignation motive, I would nonetheless find that [the employer] had not engaged in conduct or a course of conduct that left [the worker] no real choice but to resign."
The FWC pointed out that the worker didn't mention any concerns about the alleged incident when she resigned or in later discussions with her superiors.
The FWC agreed with the employer's objection. It concluded that the worker wasn't dismissed as defined in section 386 of the Fair Work Act. The FWC's decision was based on several findings:
"I have found that [the worker] was not dismissed within the meaning of either s 386(1)(a) or (b) of the Act. Accordingly, at the time [the worker] made her application on 8 August 2024, she was not a person who had been dismissed for the purposes of s 365 of the Act."
This case highlights the importance of clear communication when resigning and the potential effects of what employees do after leaving a job. It further shows how the FWC evaluates claims of forced resignation:
"Beyond the alleged 6 August 2024 exchange between [the worker] and [her colleague] on which I have made findings above, there is no evidence of any further specific conduct, or a course of conduct engaged in by [the employer] that had the intention of bringing the employment relationship to an end or would have had that probable result."
