Constructive unfair dismissal; the “what else could I do test”

When determining whether a resignation by an employee was “forced” and thus was capable of constituting a constructive dismissal for the purposes of the Fair Work Act’s unfair dismissal jurisdiction, one of the modern legal tests is whether the employee had any other reasonable option but than to resign. Here is the test in practice.

 

“[16] As such, it could not be said that Ms Hawkins resigned her employment in the heat of

the moment. In any event the text of Ms Hawkins’ resignation email was relatively considered

and on its face disclosed no duress. In fact to the contrary Ms Hawkins said that she was “open

for discussion” to do further work:

“… I wish to leave on a positive note and thank you all for the opportunities that were

presented to me during my time of employment.

In saying that, I am open for discussion and would be more than happy to return if you

find it hard to fill a Sunday shift, if you have staff on holidays or if you need additional

help with Valentines Day and Mothers Day preparations.”

[17] There is no evidence of Ms Hawkins being singled out or treated any differently to any

other employee under Elizabeth’s supervision. Some messages were sent to all staff and some

messages were sent to selected staff depending on the subject matter of the message. Ms

Hawkins was adamant in alleging that other employees suffered in the same way that she did.

In this regard it is difficult to see how Elizabeth’s conduct, even if it was conduct that caused

Ms Hawkins to resign, was conduct undertaken with the intention of causing Ms Hawkins to

resign.

[18] I do not need to decide whether the employer’s conduct was reasonable or fair, I need

to decide whether the employer engaged in conduct with the intention of bringing the

employment to an end, or alternatively whether the probable result of the employer’s conduct

was that the employee had no effective or real choice but to resign.

[19] Where earlier cases and the summary in BUPA refer to an employee having ‘no real or

effective choice but to resign’, what is usually referred to is an employee being in a situation

where they have no real or effective choice to continue in employment, and therefore no option

but to resign.

[20] Importantly, there is no persuasive evidence in this case that continuing in employment

was not a real or effective option available for Ms Hawkins.

[21] Ms Hawkins said that she believed that the only way to stop the bullying behaviour was

to resign. Sadly this is a common experience for employees who think they have been bullied.

As Ms Hawkins said, it is very hard to tell a bully that they are a bully. Ms Hawkins said that

she resigned because she thought resigning was “the only way to end it.”

[2023] FWC 896

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[22] In this case Ms Hawkins did have other options available to her to address what she

considered to be bullying behaviour. She could have sought a meeting with Elizabeth and

voiced her concerns. She could have raised a complaint, formally or informally, to LR Florist’s

principal, Ms Liu. Ms Hawkins could have sought a stop-bullying order in the Commission.

There is no guarantee that any of these measures would have been successful – Ms Liu capacity

to deal with and prevent bullying is unknown, Ms Hawkins’ stop-bullying application might

not have been successful or worse still, Ms Hawkins’ allegations could be misguided or even

mischievous. However each was a real or effective choice available to Ms Hawkins that would

have allowed her employment to continue.

[23] Although Ms Hawkins pushed back on Elizabeth’s messages on 21 October 2022, she

did not formally or informally raise a complaint of bullying to Ms Liu, or anywhere else prior

to giving notice to resign.

[24] After Ms Hawkins resigned there were emails between Ms Hawkins and Ms Liu in

which Ms Hawkins told Ms Liu the “real” reasons for her resignation. Ms Hawkins said she

intentionally raised “red flags” in her emails to Ms Liu and expressed disappointment that Ms

Liu did not attempt to discuss these matters with her.

[25] Despite Ms Hawkins holding the view that she had been bullied, and holding the view

that the only way to make the bullying stop was to resign, I do not find that the employer

engaged in conduct forced the employee to resign.

[26] More precisely, I do not find that Ms Hawkins was dismissed from her employment and

therefore I will make an order accordingly (PR761138).

[27] There is one final point to note: the only matter determined in these legal proceedings

is the specific question of whether Ms Hawkins was dismissed. Ms Hawkins made criticisms

of and allegations against her supervisor Elizabeth. Those allegations were ventilated but were

not fully tested or contested because it was not necessary to make any findings about them. I

have refrained from including Elizabeth’s surname in this decision because she was not Ms

Hawkins’ employer, was not directly a party to this litigation and did not have the opportunity

to properly know the allegations against her, nor defend them in full.”

 

Hawkins v LR Florist Pty Ltd [2023] FWC 896 delivered 17 April 2023 per Easton DP