FWC evaluates if employer forced worker's resignation
The Fair Work Commission (FWC) recently dealt with a case involving a dispute between a worker and her employer.
The worker argued she had been unfairly dismissed after refusing to sign a new employment contract.
She claimed the employer's actions left her with no choice but to end her employment, effectively forcing her out of her job.
The case raised questions about the rights of casual employees and the extent to which employers can change employment terms.
The worker had been employed as a casual tutor at a prestigious girls' school in Sydney for several years. Specifically, she worked at the school's Futures Extension Centre, which provides after-school and Saturday tutoring services to students.
In early 2024, the school introduced a new employment contract for tutors. The worker expressed concerns about two main aspects of the contract: the intellectual property clause and the proposed pay rates.
Despite not signing the new contract, the worker continued to be offered casual engagements for the first two terms of 2024.
Tensions arose when the school insisted on the contract being signed for future engagements. In July 2024, the school's principal wrote to the worker, stating:
"[We] cannot continue to engage you unless you agree to the terms and conditions on [sic] the published contract and sign it. It places the College at risk for us to continue in this way.... Regretfully, I therefore need to ask you to return the signed contract by Friday 19th July 2024 or we will not be able to engage you in the Futures Centre."
This ultimatum sparked further discussions between the worker and the school. The worker sought either the removal of the intellectual property clause or additional compensation for time spent preparing course materials.
The school remained firm on its position, refusing to alter the contract terms. However, they did offer to review the worker's pay rate and extended the deadline for signing the contract to 7 August 2024.
The worker, feeling she had no other options, decided not to sign the contract. In an email to the centre manager, she explained:
"[The principal] has made his position clear that without a signed contract my employment will be terminated. I haven't been presented with any other options to dispute the contract further or seek a solution while maintaining my employment."
The worker then filed an application with the Fair Work Commission, arguing she had been dismissed in contravention of the general protections provisions of the Fair Work Act 2009.
The school argued that there was no dismissal, as they had not intended to end the employment relationship. They emphasised their efforts to address the worker's concerns and highlighted that they had informed her that her employment had not been terminated.
After considering the evidence, the Commission determined that the worker had not been dismissed. The decision emphasised several key points:
"[The school's] conduct of the staff... is more consistent with the intention of maintaining that relationship."
The Commission also said:
"To suggest that it was unreasonable for [the school] to draw a line in the sand would be to accept that [the worker] ought to have been permitted to continue to work indefinitely without a contract until such time as she was offered one acceptable to her. That is simply untenable."
Finally, the decision stated:
"I am not satisfied that there were any steps by [the school] that amounted to a termination on the employer's initiative."
This case serves as a reminder for both employers and employees to carefully consider the terms of employment contracts and to engage in open dialogue when changes are proposed. It also highlights the complex nature of casual employment relationships and the importance of understanding one's rights and obligations in the workplace.
