Employer argues it was voluntary exit, says it was 'willing to discuss' his terms
The Fair Work Commission (FWC) recently dealt with a case that explores the fine line between resignation and dismissal.
A worker claimed he was forced to leave his job due to his employer's actions, including alleged bullying, unreasonable work arrangements, and unfair disciplinary measures.
The employer, on the other hand, maintained that the worker had voluntarily resigned. This case delves into the issues surrounding constructive dismissal and forced resignation, highlighting the importance of clear communication in the workplace.
Dismissal or resignation?
The dispute centred around a site manager who started full-time employment with the employer on 13 February 2023. He worked as an onsite account manager based west of Brisbane.
On 31 May 2024, the worker's employment ended under disputed circumstances. The worker filed a general protections application with the FWC on 11 June 2024, alleging he was dismissed.
The employer objected to the application, arguing that the worker was not "dismissed" within the meaning of the Fair Work Act, but had instead resigned.
This jurisdictional objection needed to be resolved before the FWC could proceed with conciliation.
The worker presented two alternative arguments to the FWC:
1. The employer's actions amounted to a repudiation of his employment contract, which he accepted, thus ending the employment relationship.
2. If it was found that he resigned, he was forced to do so because of the employer's conduct.
To support these arguments, the worker pointed to several issues. He said the employer hired an assistant site manager who didn't report directly to him, which he found unreasonable.
He also claimed the employer breached safety legislation by failing to provide a safe workplace, referring to bullying complaints against his manager.
Additionally, he argued that a warning letter issued to him on 6 December 2023 was unfair and lacked procedural fairness.
The employer maintained that the worker had voluntarily resigned and was not forced to do so. They presented evidence of communications with the worker, including emails where they repeatedly stated his position remained open and they were willing to discuss his return to work.
Is it voluntary resignation?
The FWC found several problems with the worker's argument that his employment ended due to the employer's repudiation of the contract. The Commission noted:
"The considerable delay between the alleged repudiatory conduct by [the employer] and the alleged acceptance by [the worker] clearly caused prejudice to [the employer]. [The employer] entered into a series of secondments with [another employee], on the belief that [the worker] would return to the site manager position when he became fit."
Regarding the forced resignation claim, the FWC found an email from the worker dated 21 May 2024 to be particularly revealing:
"To be honest at this point I don't feel as though I am capable of returning to my old role but I was just trying to gauge from [the employer's] perspective whether it may still be a possibility."
The FWC interpreted this and subsequent communications as indicating the worker had decided returning to his role was not realistic, and he was trying to negotiate an exit or have the employer terminate him.
The Commission also emphasised the objective nature of assessing whether an employee was forced to resign:
"While I accept [the worker] subjectively considered he had to resign if the requests were not agreed by [the employer], that is not the legal test. I consider an objective reasonable person would have realised the list of requests was completely unrealistic and would have had discussions with [the employer] about what measures could realistically be taken based on medical advice."
Worker was not dismissed
The FWC dismissed the worker's application, finding that he was not "dismissed" within the meaning of the Fair Work Act. The Commission concluded:
"I find that [the worker] was not forced to resign within the meaning of s.386(1)(b) of the FW Act."
The decision highlighted the employer's efforts to keep communication open:
"[The employer] went to extensive lengths to confirm in writing that [the worker] did not need to resign and that it would work with him on a return to work if he had a medical clearance. [The employer] even provided [the worker] with an opportunity to retract his resignation."
This case underscores the importance of clear communication during workplace disputes and the need for employers to document all interactions carefully. It also shows that the FWC considers objective factors when determining whether a resignation was forced.
