Leadership conflicts and role confusion lead to resignation, but was it truly forced?
The Fair Work Commission (FWC) recently dealt with a case involving a worker who resigned from her role as an educational leader after only five weeks with her new employer. The worker claimed she had no real choice but to resign, arguing that her resignation should be treated as a dismissal under the Fair Work Act 2009.
At the core of her claim were allegations about feeling excluded from leadership decisions, being assigned duties outside her specialised role, and confusion over her working hours after a childcare centre changed ownership.
These frustrations culminated in an email stating "please accept this as formal notification of my resignation effective immediately."
The worker filed an application under section 365 of the Fair Work Act 2009, alleging she was dismissed in a manner that contravened Part 3-1 of the Act. The employer objected, maintaining that the worker had voluntarily resigned rather than being dismissed.
Before attempting to resolve the alleged contraventions, the FWC needed to determine whether the worker was actually dismissed within the meaning of section 386 of the Fair Work Act 2009.
This section defines dismissal in two ways: either the employment was terminated on the employer's initiative, or the person resigned but was forced to do so because of the employer's conduct.
The Commission referred to the Full Bench decision in Bupa Aged Care Australia Pty Ltd v Tavassoli, which established the test for forced resignation. According to this precedent, a resignation will be considered a dismissal if "the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign."
Commissioner Michael Easton noted that the worker "did not contend that her dismissal occurred within 'the heat of the moment'" and therefore focused on whether the employer "engaged in a course of conduct intended to bring [the worker's] employment to an end or had that probable result, such that she had no real or effective choice but to resign."
The early childhood education centre where the worker was employed had operated as "Villa Bambini Templestowe" until it was acquired by new owners on 2 December 2024, after which it became "Paisley Park Templestowe." The worker, who had been at the centre since March 2024, was engaged by the new employer starting 3 December 2024.
The worker held the position of educational leader, which the Commission described as "a relatively senior position within an ECEC [Early Childhood Education and Care] service, responsible to oversee curriculum development, ensure that programs align with relevant learning frameworks and promote a culture of continuous improvement within a service." This position required specific qualifications under regulation 118 of the Education and Care Services National Regulations.
Before the ownership change, the worker had a flexible arrangement where she worked two days per week during school term periods (when she also worked elsewhere as a sessional trainer) and increased to three or four days during non-term periods.
Her employment contract with the new employer listed her position as "educational leader" with part-time hours of "up to 76 hours per fortnight."
The Commission noted that the Children's Services Award 2010 required the employer and part-time employee to agree in writing on a regular pattern of work, specifying hours worked each day, which days the employee would work, and the actual starting and finishing times.
The decision stated: "It does not appear [the employer] complied with this clause of the Award. Her contract of employment, in respect of 'ordinary hours' simply said 'up to 76 hours per fortnight'. Thus, there was some confusion as to what [the worker's] hours of work with [the employer] were."
Prior to the ownership change, the worker had experienced a deteriorating relationship with the centre director.
The Commission heard that the worker "appears to feel that whereas at some point in the past, she, [the centre director] and [the assistant director] worked well as a leadership team, over time she felt she was excluded from being part of this senior team."
The decision noted this relationship issue "has caused her distress and resentment and appeared to me to be at the root of the problems that ensued."
Additionally, the worker "began to take issue with the amount of time she was being scheduled to work as a 'breaks reliever' – relieving other educators so they could take their break – instead of being able to focus on her role as Educational Leader."
When the new employer took over in December 2024, the worker approached the regional manager about these issues. According to the evidence presented, a staff meeting was held on or about 3 December 2024 involving the regional manager, whose role was to support the transition occurring as a result of the new owners taking over running of the centre.
At the end of this meeting, the worker approached the regional manager and told her about issues she had been experiencing with the centre director, particularly regarding being used as a breaks reliever.
The Commission noted that the worker "took from this conversation the impression that as the transition continued, in the new year, work would be done to assist [the centre director] to manage the role of Educational Leader in a more appropriate way." However, during December 2024, the worker claimed she continued to be scheduled frequently as a breaks reliever rather than performing her educational leader role.
On 6 January 2025, an incident occurred that apparently pushed the worker to resign. The decision described: "In short, it appears a conversation occurred between [the centre director] and another staff member, which was ultimately revealed to be about overstaffing, and a decision that a member of staff could go home early. [The worker] said that when she entered the room in which this conversation was occurring, [the centre director] and the other staff member removed themselves from the room."
The worker took particular offence at not being included in this conversation or, as she saw it, being excluded from the decision-making process as a member of the centre leadership team. Later that evening, she emailed her resignation "effective immediately" and did not return to work.
In assessing whether the worker was forced to resign, the Commissioner considered which aspects of the employer's conduct could be relevant. He noted that matters that occurred before 3 December 2024 were "of only peripheral relevance" as they "cannot be said to be conduct engaged in by her employer."
The Commissioner acknowledged that after the ownership change, some issues continued or worsened: "[The worker] continued to feel undervalued, now also due to the perceived behaviour of [the regional manager]. She also continued to be required to spend more time than it appears she wished not performing the duties of educational leader and providing breaks relief instead."
The Commissioner found the arrangement regarding the worker's hours "was already fluid, prior to her being engaged by [the employer]." He stated: "It is doubtful that, even if [the employer] understood the arrangement [the worker] thought existed, such that her days of work outside 'term time' should have increased from two to four, that it was obliged to provide those hours, especially if there was no operational need for it."
Regarding the worker's complaints about being excluded from leadership decisions, the Commissioner found these appeared "to be at least to some extent a matter of her own perception."
He added: "To the extent such conduct occurred, I consider it unlikely to have been deliberate, or such that it rises to the level of a 'course of conduct' intended to force a resignation."
Addressing the Educational Leader allowance issue, the Commissioner noted: "It is not clear to me the basis upon which either [the worker's] former employer, or [the employer] only paid her the Educational Leaders allowance prescribed by the Award at certain times and not others, depending on the work she was allocated to, despite her being clearly employed by both employers in the role."
The Commissioner concluded: "It is evident to me that a confluence of circumstance caused [the worker] to feel she had to resign from a role which she was professionally devoted to and had at some stage enjoyed. However, this was not as a result of a course of conduct engaged in by [the employer] which had left her no choice."
The decision emphasised that the employer "did nothing consciously, with the intention that it would result in [the worker's] resignation," though noted that "Perhaps if it had a better insight into [the worker's] concerns, it may have been more proactive in addressing them—but she did not allow this to occur because after about five weeks of employment, she ended the employment relationship of her own volition."
Based on these findings, the FWC determined the worker was not dismissed within the meaning of the Fair Work Act 2009, and her application was dismissed.
