FWC: Is it dismissal or resignation?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case filed by a worker against her former employer, a mental health support provider in Victoria.
The worker claimed that she was forced to resign due to the employer's failure to address her complaints of bullying and harassment, and the lack of trust and confidence in the misconduct investigation against her.
The outcome of the case highlighted the importance of understanding the legal definition of dismissal and the factors considered by the FWC in determining whether a resignation was forced or voluntary.
The worker started her employment with the employer as a part-time support worker in March 2023. In May 2023, the worker alleged that she began experiencing harassment and targeting from co-workers, which she brought to the attention of her supervisor.
Despite her complaints, the worker felt that her concerns were not adequately addressed by the employer.
In September 2023, the worker was informed of complaints made against her by co-workers and was provided with a copy of the employer's grievance policy. She requested a transfer to another work location, which was granted on a temporary basis. However, the worker's dissatisfaction with the handling of her complaints persisted.
On November 20, 2023, the worker was advised of allegations of misconduct against her, which were to be formally investigated by the employer's general manager.
During a meeting on November 23, 2023, the worker made it clear that she did not want to return to her original work location and would rather resign if that was her only option. The worker sent an email on November 28, 2023, confirming her decision to resign and expressing her interest in working on a casual basis at the other location.
The employer responded the following day, accepting her resignation and stating that they would consider her request for casual work once the misconduct investigation concluded.
The FWC examined the evidence presented by both parties and considered the legal definition of dismissal under section 386 of the Fair Work Act 2009. The key question was whether the worker's resignation was forced by the conduct of the employer or if it was a voluntary decision.
The FWC found that the evidence did not support the worker's claim that she was forced to resign due to the employer's failure to address her complaints or the lack of trust in the misconduct investigation.
The Commission stated:
"Ultimately, however, based on [the worker's] own version of events in evidence, it was not until 5 December 2023 that she became aware of the proposed first and final warning in a phone call. Whilst there may have been some confusion on the [worker's] part as to the date of this phone call, there is nothing before the Commission to support a contention that it was made before [the worker's] resignation email on 28 November 2023 and that objectively viewed, she was in any way forced, or left her with no choice, but to resign."
The FWC also found no evidence to suggest that the worker was encouraged or led to believe that she would be offered casual work if she resigned from her position. The Commission noted:
"In relation to whether or not the employer should have done more to clarify [the worker's] intentions to resign, on the evidence presented, I do not consider this to be the case. In fact, the evidence suggests that at least on one occasion after the [worker] had made it clear her intention to resign from her employment, the [employer] sought to confirm if this was still the case."
Based on the evidence presented, the FWC concluded that the worker was not dismissed by the employer pursuant to section 386 of the Fair Work Act 2009. The Commission found that the worker's resignation was voluntary and not forced by any conduct or course of conduct engaged in by the employer.
"Accordingly, on balance, I have found that [the worker] was not dismissed by the [employer] pursuant to s.386 of the Act, and for that reason, the Commission lacks the jurisdiction to allow her s.394 claim to proceed. The Application must be dismissed."
FWC reminded employers that not all resignations are considered dismissals under the Fair Work Act 2009. It said that for a resignation to be deemed a dismissal, there must be evidence that the employer engaged in conduct with the intention of bringing the employment to an end or that the termination of employment was a probable result of the employer's conduct, leaving the employee with no effective choice but to resign.
"In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign,” the FWC said. Consequently, since she was not dismissed, the FWC dismissed the application.
