Worker claims he was 'pressured to resign,' disputes dismissal
The Fair Work Commission (FWC) recently dealt with a general protections dispute involving the dismissal of a worker from his employment with a security company.
The worker, employed as a mobile patrol security officer, claimed that he was dismissed from his employment, while the company raised a jurisdictional objection, arguing that the worker had resigned from his employment and was not terminated on the employer's initiative.
In this case, the worker's role involved driving a company vehicle between various suburbs north of Brisbane, using a company phone to access work portals, checking in and out of clients' sites, and scanning location tags to demonstrate his presence.
His responsibilities included meeting strict nightly driving KPIs, vehicle maintenance, responding to alarms, and completing site patrols at various locations throughout the night.
The worker claimed that he was not provided with adequate training and was instructed by his trainer to deviate from client instructions and falsify reports to save time on patrols.
Worker's performance and management
The worker initially received constant praise from his manager, both in person and via email, whenever positive feedback was received from clients.
However, this positive feedback ceased when the worker started “performing his patrols correctly,” taking extra time at some sites to fulfill the site brief. As a result, he began missing many sites each night and was questioned about his inability to complete all his jobs.
The worker struggled with stress, and his performance was reviewed by his manager. He raised concerns about high workloads in an employee survey but felt that his concerns were ignored.
Despite being offered a full-time position and additional training, the worker remained unhappy and began missing shifts due to reported burnout, high-stress levels, and declining mental health.
The worker visited his GP on several occasions during his employment, with medical certificates indicating that he was unfit for work due to a medical condition and work stress. The worker remained absent from work, leading to further communication between him and his managers regarding his return to work and the resolution of issues he was facing on his patrols.
Events leading to the worker's resignation
In August 2023, the worker and his manager engaged in numerous email exchanges regarding the proper way to conduct patrols and the time allocated for each site. The worker informed his manager that his stress and anxiety levels were “extremely high,” and he would be unable to work for mental health reasons.
The worker remained absent from work and was contacted by another manager inquiring about his return. During this call, the worker felt “pressured to resign” and responded emotionally, stating that he would return to work and "follow all the dodgy and potentially illegal instructions" he was trained to do. The manager did not respond, and the worker terminated the call due to an anxiety attack.
On 6 September 2023, the worker sent an email to his manager stating, "I'm handing in my resignation to you as of right now." The manager accepted the resignation and requested the return of all uniforms as soon as possible.
The parties’ arguments
According to records, the worker argued that he had been dismissed from his employment, despite stating in his email that he was resigning "as of right now." He claimed that the request for the immediate return of his uniforms meant that he would not be able to work out his one-week notice period.
The worker also highlighted the discrepancies in his training, stating that he was instructed to deviate from client instructions and falsify reports to save time on patrols. He felt that his security license and driver's license were at risk because he was expected to "break the law" for the employer's financial gain.
The employer raised a jurisdictional objection, arguing that the worker had resigned from his employment and was not terminated on the employer's initiative. They relied on the worker's email, which clearly stated, "I'm handing in my resignation to you as of right now."
The employer also pointed out that the worker had been offered additional training and support to resolve the issues he was experiencing on his patrols. However, the worker remained absent from work and ultimately chose to resign.
The FWC’s decision
The decision highlighted the importance of clear communication between employers and employees, particularly in situations involving performance issues, mental health concerns, and resignations.
The FWC considered the evidence presented by both parties, including the email exchanges and text messages between the worker and his managers. The Commission noted that the worker had clearly stated his intention to resign in his email, using the words "as of right now."
The FWC also considered the events leading up to the worker's resignation, including the discussions about his performance and the efforts made by the employer to address his concerns.
As stated in the decision:
"[The worker] considered that when requested for his uniforms as soon as possible, it meant that he wouldn't be able to work out his one week notice period. This is despite him having declared the resignation of his employment 'as of right now'."
This quote highlights the worker's inconsistent stance on his resignation, as he had clearly stated that he was resigning with immediate effect, yet later claimed that he was not given the opportunity to work out his notice period.
Furthermore, the FWC noted that the worker had been offered additional training and support to resolve the issues he was facing on his patrols, as evidenced by this quote from the decision:
“[The branch manager] gave instructions as to how the two sites could be patrolled and confirmed [the senior security officer] would not be retraining [the worker],” the FWC said.
The FWC said that this demonstrates that the employer had taken steps to address the worker's concerns and provide him with the necessary support to perform his duties effectively.
Ultimately, the FWC found that the worker had resigned from his employment on his own initiative and was not dismissed by the employer. The Commission emphasised that the worker's email clearly expressed his intention to resign with immediate effect, and the employer had accepted this resignation.
As stated in the decision:
"The email sent by [the branch manager] to [the worker] is as follows: 'Hi! Thanks for your email. Your resignation has been accepted and I will process the paperwork now. Please return all of your uniforms as soon as possible.'"
This quote confirms that the employer had accepted the worker's resignation and acted accordingly by processing the necessary paperwork and requesting the return of company property.
Thus, the FWC determined that the worker had not been dismissed from his employment but had resigned on his own initiative. The Commission found that the evidence presented did not support the worker's claim that he had been forced to resign due to the employer's conduct or course of conduct.
