Worker resigns before disciplinary meeting — then claims unfair dismissal

The Fair Work Commission (FWC) recently dealt with a worker’s claim that she was forced to resign when she received a letter to conduct a meeting about the allegations against her.

The worker, Chloe O'Brien, was employed at S+S Hair and Beauty Pty Ltd and resigned from her position via email. Just two days before her resignation, O'Brien had received a "Notice of Disciplinary Meeting."

The said notice outlined specific allegations of misconduct and performance breaches and indicated the potential for disciplinary action, including a formal warning.

The disciplinary meeting was initially scheduled for the following day but was subsequently canceled after O'Brien's resignation. Her employment, which had been for less than twelve months, officially concluded on 17 April 2023.

More than a week after, O'Brien filed an application with the Commission, arguing that she had been dismissed from her employment.

Compelled to resign?

The worker said she was compelled to resign due to bullying behaviour exhibited by the salon's manager and other employees. Specifically, she expressed her unhappiness regarding the bullying conduct and decided to resign upon receiving the disciplinary meeting notice.

O'Brien alleged the following forms of bullying conduct:

• The workplace was deemed unsafe, toxic, and devoid of respect;
• Her co-workers made hurtful comments about O'Brien's appearance;
• O'Brien was subjected to verbal abuse in the presence of customers;
• She was pressured to work unpaid overtime and to purchase or replace items for the salon's benefit;
• There were threats of reporting O'Brien to the area manager and threats of employment termination;
• Other staff members teased her, believing she had a medical condition.

Meanwhile, S+S expressed concerns about O'Brien's conduct and work performance. They cited complaints from clients regarding tasks performed by her. Although O'Brien acknowledged making some mistakes, she highlighted a perceived lack of training and supervision from the employer.

The employer’s notice

On 15 April 2023, the employer’s HR manager sent a letter to the worker, requiring her attendance at a disciplinary meeting concerning her work performance.

The letter listed her performance breaches, which included:

• Unacceptable appearance, with concerns about clothing and hairstyle
• Rough treatment of clients, with alleged non-compliance of procedures
• Incomplete procedures and a lack of attention to detail
• Overdue projects
• Lack of care taken with salon items and others' property, including incidents like spilling water on a mobile phone and breaking sterilizing equipment.

According to records, the meeting never occurred because O’Brien resigned from her employment instead. She said the letter was "sent in order to induce her to resign."

Was there an intention to dismiss?

The FWC examined the letter to see if the employer phrased it in a way that would encourage resignation.

“The letter referred to a ‘disciplinary meeting,’ which was reasonable conduct by S+S that put O’Brien on notice that the meeting was important to her employment. The letter identified in broad terms the allegations that [the management] wanted to discuss, which is reasonable conduct,” the FWC said.

“The allegations themselves do not appear to me to be capricious or unfair or so unreasonable that O’Brien could have legitimately believed that she would not be treated fairly at the disciplinary meeting,” it added.

“In fact, the letter specifically said that one possible outcome of the meeting was that she could receive a formal warning. This seems significant insofar as the letter did not even indicate the possibility that [her] employment might be terminated at the meeting,” it said.

The worker had ‘other options available’

The FWC went on to say that the worker “had options available to her other than resigning.”

“The most obvious two options being that she (1) attend the disciplinary meeting and explain her conduct and performance and/or (2) make a formal complaint about her co-workers,” it said.

Thus, the FWC said the employer did not perform any misconduct that would force the worker to resign. It said she was not dismissed and, consequently, rejected her application against the employer.