Says commentary in performance review was inconsistent, untruthful and lacked constructive criticism
The Fair Work Commission (FWC) recently dealt with a case involving a behaviour support practitioner who claimed she was forced to resign due to her employer's conduct.
The worker argued that her team leader provided inconsistent and untruthful feedback, lacked constructive criticism, and potentially discriminated against her based on her ethnic background.
She also claimed that the discovery of a critical performance review, which she had not previously seen, pushed her to resign. This case raised important questions about the line between voluntary resignation and forced termination, and what constitutes a dismissal under the Fair Work Act 2009.
The worker, a Brazilian national with English as her second language, started her role as a behaviour support practitioner with the employer on 5 February 2024. Her job involved preparing case notes and formal reports for NDIS participants, which required clear and correct language use.
Throughout her employment, the worker received regular supervision from her team leader. This included weekly one-on-one sessions, group supervision meetings, and impromptu discussions. These interactions were meant to check on the worker's wellbeing, discuss her caseload and progress, identify areas for improvement, and provide guidance.
On 23 April 2024, the team leader sent an email to the worker praising her work but also mentioning concerns about her language use in case notes. This feedback continued through May. On 3 May 2024, during a three-month probationary period review, the team leader raised concerns about the worker's written case notes and formal reports, specifically regarding her use of language and terminology.
On 31 May 2024, the team leader met with the worker to discuss concerns about her verbal and written communication skills. In an email following this meeting, the team leader wrote:
"I outlined [the worker's] use of language, phraseology, and wording may not be appropriate for the level of formal report writing required to produce easy to read behaviour support plans."
On 3 June 2024, they met again. During this meeting, the worker stated that with support, practice, and experience, she could reach the required level of formal report writing, but it might take up to two years. The team leader responded that this timeframe was too long and not practical for the role.
The worker then decided to resign, saying the role was not for her and that she would concentrate on her studies. She submitted her resignation via email later that day, effective from 11 June 2024.
However, after submitting her resignation, the worker discovered her quarterly performance review, which contained critical comments she had not previously seen. This discovery prompted her to submit a letter of complaint to the regional manager on 5 June 2024.
The worker argued that she was forced to resign due to her team leader's conduct. She said the feedback provided throughout her employment was inconsistent and untruthful, lacking specific and constructive content. In her letter of complaint, the worker wrote:
"The thing that tipped me over the edge and caused me to write this letter was finding new information on my file relating to his observations of my performance, which he never shared with me."
The worker also claimed that her team leader's approach was discriminatory, based on her ethnic origin and Brazilian conversation style. She argued that this treatment led to a mental health crisis, forcing her to resign.
The employer maintained that the worker's resignation was voluntary and not forced by their conduct. They argued that providing feedback to an employee does not constitute forcing them to resign.
The employer emphasised that they had not suggested termination as an option and that the worker had other avenues available to her, such as raising concerns with higher management or lodging a formal grievance.
In evaluating the case, the FWC referred to previous decisions that help define what constitutes a "forced" resignation. One key consideration was outlined in a previous case:
"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 worker] had no effective or real choice but to resign."
The Commission also considered another principle from a different case:
"It is necessary to ensure that [the employer's] conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. [The employer's] conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal."
After considering all the evidence and arguments presented, the Commission reached its decision. It stated:
"For the reasons that follow, I have determined that [the worker] was not dismissed within the meaning of s.386 of the FW Act."
The case highlights the issues that can arise in workplace relationships, particularly when it comes to performance management and feedback. It emphasises the importance of clear, consistent, and documented communication between employers and employees, especially when dealing with performance concerns.
