FWC rules on whether reduced responsibilities constitute constructive dismissal
The Fair Work Commission (FWC) recently dealt with a jurisdictional objection in an unfair dismissal case involving a worker who resigned from his position and later claimed he was forced to do so due to his employer's conduct.
The worker argued that his employer had failed to properly return him to his substantive role following a period of leave, effectively repudiating his employment contract. He claimed that sharing his coordinator position with another employee who had acted in the role during his absence amounted to a significant diminution of his status and responsibilities.
The worker also contended that the employer had breached recommendations made by an FWC Commissioner regarding his return-to-work arrangements, leaving him with no real choice but to resign after experiencing what he described as "sustained unfair and discriminatory treatment."
The worker was employed at Western Health as a learning designer in August 2019 and was later promoted to WeLearn coordinator in March 2021, where he managed the Learning Management System (LMS) team.
His role involved managing the LMS function, coordinating the administration team and other course designers, managing recruitment, leading team members, and prioritising work according to need.
In August 2023, the worker approached his manager seeking support to care for his ill mother. By October 2023, he requested to work from home full-time as his mother's health deteriorated further.
Western Health granted flexible arrangements allowing two days at home and three days in the office. When this proved difficult for the worker, the employer allowed him to use carer's leave for days he was meant to be onsite, and from October 2023, he only attended the workplace when specifically requested.
In January 2024, the worker requested and was granted full-time remote work for a three-month period. Shortly after, he started periods of personal leave in February 2024 and was absent from work from approximately May to July 2024.
During the worker's absence, another employee, Daniel Nolan, temporarily took over the WeLearn coordinator role to maintain continuity of operations.
In February 2024, one of the worker's direct reports, a Technical Administrator, lodged a bullying complaint against him. The worker also raised concerns about bullying but did not identify anyone as an alleged bully or access the employer's anti-bullying policies.
In May 2024, the worker provided a medical certificate recommending: "Recommended [return-to-work], with 2 days per week for 4 weeks, in different team, to avoid as much as possible the contact with previous team."
A subsequent medical certificate in June 2024 modified this recommendation to: "Recommended [return-to-work], with 2 days per week for 4 weeks with the same previous job with recommended support."
In July 2024, the worker filed a stop-bullying application with the FWC. Commissioner Lee issued a recommendation stating that the worker would return-to-work subject to medical restrictions, return to his previous role, and have an external person review his workload claims.
Following the FWC recommendation, the employer appointed Susan Zeitz of Peacemaker ADR as an external investigator to examine both the allegations against the worker and his claims about excessive workload.
The worker returned to work on August 6, 2024, working remotely for two days per week as recommended by his doctor. Because he could only work part-time, he shared the coordinator role with Mr. Nolan, who had been acting in the position during his absence.
The worker later acknowledged in the Commission hearing that given his part-time hours, it was reasonable for the employer to split the role. He admitted he could not perform certain duties, such as conducting the start-of-week team meetings, due to his limited schedule.
On August 22, the worker emailed his acting manager about his work priorities, writing: "Given the current restrictions and limited hours I can commit to, I'd like to propose the following timelines..." His proposals were accepted by his manager.
On September 24, Western Health made it clear to the worker that Mr. Nolan had not replaced him. The employer's representative wrote, "given that you are only able to work two days a week at present [it] means that we can only give you some of your duties and not all of them to be completed."
Despite the employer's clarification, the worker resigned on September 30, 2024, claiming Western Health "denied me the right to return to my role as the WeLearn Coordinator" and "did not comply with our Fair Work Commission agreement upon my return-to-work."
The Commission analyzed whether the worker's case met the criteria under section 386(1)(b) of the Fair Work Act, which states a person is dismissed if "the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."
The FWC noted that a forced resignation occurs "when an employee has no real choice but to resign" and that "the onus is on the employee to prove that they did not resign voluntarily."
The decision referenced important principles regarding repudiation of employment contracts, noting that "in the context of employment contracts, a significant diminution in remuneration, status or responsibility may constitute a repudiation. Whether or not this is so is a question of fact in each case."
The Commission also highlighted that employment relationships require "some reasonable give and take," particularly when accommodating medical restrictions or investigating workplace issues.
The Commission focused its analysis on the period between the FWC Commissioner's recommendation on July 24, 2024, and the worker's resignation on September 30, 2024.
The FWC found that Western Health had substantially followed the recommendations by allowing the worker to return-to-work for two days per week as medically advised, returning him to his previous role (with duties modified to accommodate his part-time status), and appointing an external investigator to review his workload claims.
The Commission found no evidence that the worker objected to continuing the two-day arrangement after the initial four-week period, nor did he complain about the assigned tasks and timeframes after returning to work.
The decision stated: "All the changes made to [the worker's] work arrangements post 24 July 2024 were a part of the 'reasonable give and take'. Those changes were consistent with his inability to work more than 2 days per week and the fact that he was under investigation."
The Commission noted there was no significant diminution in the worker's "remuneration (it remained the same); status (he remained the WeLearn Coordinator); or responsibilities (all changes made to his responsibilities are explained by his ability to work only 2 days per week)."
The FWC concluded: "On 30 September 2024 [the worker] resigned. It cannot be said that [the worker] 'had no effective or real choice but to resign'. He did so voluntarily. It was unequivocally his own voluntary action. It did not result from the action of [the employer] objective assessed."
"Consequently, [the worker] was not dismissed," the Commission ruled, dismissing the unfair dismissal application on jurisdictional grounds.
