FWC examines whether worker's exit was forced or voluntary
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed that he was forced to resign from his employment due to the conduct of his employer.
The worker argued that the employer's actions amounted to bullying and harassment, which left him with no choice but to resign.
In this case, the FWC had to determine whether the worker's resignation was genuinely voluntary or if it was the result of the employer's conduct.
The worker's allegations centered around his difficult relationship with another employee and the employer's alleged failure to address the issues appropriately.
The worker claimed that the other employee had been undermining him and that the employer did not take adequate steps to resolve the conflict.
The FWC found that while there were indeed difficulties between the worker and the other employee, the evidence suggested that the employer had generally been supportive of the worker.
The employer had counselled the other employee about his behaviour and even directed him to work away from the business for a three-month period to give the worker some space.
The worker also alleged that rumours were spread about his absence from work for the purpose of seeking psychological treatment.
However, the FWC found no concrete evidence to support this claim, as the worker's requests for leave prior to December 2023 were for reasons other than his mental health.
Another incident involved the worker receiving an obscene image from a work-related phone.
While the FWC acknowledged that the image constituted sexual harassment and that the employer's response was inadequate, it found no causal connection between the incident and the worker's decision to resign over a year later.
A turning point in the case was a meeting on December 22, 2023, where the worker was given a verbal warning about his conduct.
The meeting was reportedly marked by misunderstandings and heightened emotions, with all parties admitting to using swear words.
However, the worker did not resign immediately after the meeting. He took time off, communicated with the employer about his concerns, and even submitted four separate complaints.
The employer responded by offering potential dates for a second meeting, encouraging the worker to take time for his mental health, and promptly investigating his complaints.
Despite this, the worker resigned on January 5, 2024, before receiving a response to his complaints. The FWC noted that the reasons for the timing of his resignation remained unexplained.
Ultimately, the FWC was not satisfied that the employer's conduct left the worker with no effective or real choice but to resign.
"I find no intention on the part of [the employer] to bring the employment of [the worker] to an end. [The employer] expressly told [the worker] that this was not its intention in connection with the warning of 22 December 2023. There is no reason not to accept this assurance."
The FWC further noted:
“The [worker] was unhappy at work in the week before Christmas 2023 and felt he was being pushed out, but the evidence does not establish this to have been a reasonably held concern.”
“After the meeting of 22 December 2023, [worker] thought about what to do for 14 days before submitting his resignation in writing. His resignation was given voluntarily. It was not the only choice available to [worker] to resolve concerns he had in relation to his employment, and there is no reason to consider that [worker] could not, in the alternative, have decided to remain in employment,” the FWC said.
“There was plenty of work for him to do, and he had been assured of continuity of employment. He had an interest in knowing the outcome of the investigation into his complaints, and the offer of a second meeting for the purpose of trying to achieve a resolution,” it added.
"[The worker] was not forced to resign. It follows that [the worker] has not been dismissed,” the FWC said.
The decision highlighted the importance of distinguishing between a genuinely forced resignation and a voluntary one.
It also emphasised the need for employers to address workplace conflicts promptly and adequately to prevent situations from escalating to the point where an employee feels compelled to resign.
