Worker who said he was 'forced to resign' loses dismissal claim

The Fair Work Commission (FWC) has recently dealt with a case of a worker who alleged he was “forced to resign” and sought compensation against his employer.

The employer maintained that the worker was not forced to resign and said he was merely “informed that his performance in the job was inadequate".

The worker was a business analyst at an import and distribution business. He said that the employer asked him to attend a disciplinary meeting where the employer discussed his poor performance and errors at work. The worker alleged that his employer did not provide any “real evidence” nor “clear indicators of poor performance.”

After several warnings and notices that he should improve, the worker said he was then “provided with the option to resign.” The worker said he felt “relieved” when they gave him the option to “save face.”

On the day of his alleged dismissal, the worker said that he was called to a meeting. He said the employer instructed him to write a “farewell email” to his colleagues to explain his resignation, and afterward, he was escorted off the premises. 

He filed an unfair dismissal before the FWC, arguing that he was “not in a clear mindset, being completely blindsided, and unable to clearly consider the grounds for resigning.”

He said that “he would not have resigned, or even considered it, if not for the employer's actions.” He argued that the grounds relied on by the employer were “not reasonable or sufficient to warrant dismissal.”

The employer rejected the dismissal claim, saying their email correspondence with the worker “showed a clear resignation.” It said that his poor performance “had been the subject of previous performance meetings” and said it gave him “ample opportunity to respond and improve.”

Was the worker forced to resign or not?

The FWC noted that the employer “intended to cease the worker’s employment during the meeting” and “presented resignation as an alternative to termination.” It also noted “no genuine attempt” by the employer to give the worker “time to contemplate his choice.”

The FWC said that the worker had “no effective choice” about his tenure and only “had choice in the manner of departure.” It ruled that the worker was forced to resign and was dismissed but said the employer had a valid reason to dismiss the worker related to his capacity, namely his inability to perform his job “to the reasonable satisfaction of his employer.”

Is there unfair dismissal?

Regardless, the FWC said the dismissal was not unfair nor harsh because the employer “did warn [the] worker of his unsatisfactory performance before dismissal” and gave him the opportunity and assistance to improve.

The employer dismissed the worker because he “could not perform his job to the required standard” and could “not be relied upon to deliver accurate work.” The employer provided him with feedback over several months, opportunities for improvement and two warnings.

Thus, the FWC dismissed the worker’s application for an unfair dismissal remedy. The decision was handed down on 9 March.