'I was effectively demoted and treated poorly,' argues worker amid reorganisation
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed she was forced to resign from her position at a childcare centre.
The dispute centred around changes in room allocations and job responsibilities, raising questions about what constitutes a forced resignation under Australian employment law.
This case highlights the issues that can arise in workplace restructuring and the importance of clear communication between employers and employees.
It serves as a reminder for HR professionals to consider the impact of organisational changes on staff and to ensure proper consultation processes are in place.
Worker’s childcare dilemma
The worker, an unqualified early childhood teacher (ECT), started employment at a childcare centre on 6 December 2023. Initially, she was placed in charge of a room with 4-5 year old children preparing for school in 2025. Her own child was also enrolled at the centre.
When the worker started, there were two kindergarten rooms: one for 4-5 year olds (Preschool 1) and another for 3-5 year olds (Preschool 2). The worker chose to work in the room with older children.
In March 2024, a new centre director joined the organisation and proposed changes to the room allocations after observing the spread of children across the two rooms.
Employer's perspective: Reasonable restructuring
The employer argued that the changes were necessary to meet regulatory requirements and improve the centre's operations. They maintained that the worker's position and title remained unchanged, despite her move to a room with younger children (3-4 years old).
The centre manager gave evidence that:
"It was my decision that the children of Preschool 2 that were readying for school in 2025 year would be better served by relocating to Preschool 1 alongside their peers."
The employer emphasised that they had consulted with the worker about the changes and offered various options, including moving her or her child to a sister centre. They denied any intention to force the worker's resignation. The operations manager stated:
"[The worker's] position and title remained unchanged, and an additional support was allocated following [the worker's] request."
Is it forced resignation?
The worker alleged that she was effectively demoted and treated poorly, which forced her to resign. She claimed that:
- She was denied a promised pay rise
- The room change was unnecessary and amounted to a demotion
- She was required to perform duties (such as nappy changes) that she wasn't originally employed to do
- Her employer failed to understand her child's anxiety issues
The worker submitted that an incident where she was questioned for comforting her crying son was the final straw that led to her resignation. She stated in her evidence:
"I was outdoors supervising all of the children when I noticed my son crying. I then comforted my son and brought him indoors with another child and was questioned why I had my son with me."
‘Dismissal’ under the Fair Work Act
The FWC had to determine whether the worker was dismissed within the meaning of section 386 of the Fair Work Act 2009. This section defines dismissal as either termination at the employer's initiative or a forced resignation due to the employer's conduct.
The Commission referred to the precedent set in the BUPA Aged Care case, which states:
"A resignation that is 'forced' by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign."
This legal principle emphasises that the employer's conduct must be the primary factor in forcing the resignation, rather than the employee's dissatisfaction with changes.
The FWC’s decision
After considering the evidence, the FWC concluded that the worker was not forced to resign and therefore was not dismissed within the meaning of the Act. The Commission found that:
"None of the evidence supports a conclusion that [the employer's] conduct forced a resignation or placed [the worker] in a position that she had no choice but to resign."
The decision highlighted that while the worker may have been unhappy with the changes, this dissatisfaction alone did not constitute a forced resignation:
"The evidence does show that [the worker] was unhappy that the Senior Kindy room required nappy changing and toilet training which in her view compromised her capacity to focus on educational ECT responsibilities."
Finally, the Commission emphasised the voluntary nature of the worker's resignation:
"Rather she voluntarily resigned because she was unhappy with the changes in the Centre."
The Commission also noted that the worker's resignation letter, dated 2 May 2024, made no suggestion of a forced resignation or any concerns leading to resignation. The letter stated:
"Thank you for giving me the opportunity to work in this position for the past 5 months. I have thoroughly enjoyed working here and appreciate all of the opportunities you have given me. However, I have decided it is time for me to move on to my next challenge."
This case serves as a reminder for HR professionals and employers about the need for careful management of workplace changes.
While organisations have the right to implement reasonable restructuring, it's crucial to ensure proper consultation and consider the impact on individual employees. Clear communication and documentation of agreed changes can help prevent misunderstandings and potential legal disputes.
