Fair work laws; when will a resignation be a dismissal?

One of the most common reasons I am contacted in my business by an employee is because he or she has either resigned or is contemplating doing so because in his or her opinion the employer is responsible for either allowing or causing the employee’s presence at work to become an unacceptably stressful, hostile and stressful place to be.

More often than not the person who discusses this with me is either (a) considering resigning or (b) has already done so. Either way the question almost always is whether or not the employee may pursue an unfair dismissal case.

Sometimes it is too late for that if the statutory time limit of 21 days has passed. Although it is possible to obtain an extension of time from the Fair Work Commission to file a claim of unfair dismissal, it is exceedingly difficult to do so because the statutory test is whether there are “exceptional circumstances” which is applied very strictly by the Commission.

Either way, the task of convincing the Commission that a resignation is a “constructive dismissal” (to use a vernacular) thus providing the employee with access to the unfair dismissal jurisdiction of the Fair Work Commission is vexed.

Where an employee resigns from his or her employment there is quite naturally a presumption that it is not to be regarded as a dismissal. This is a difficult presumption for a former an employee to overcome. The following extract from a decision by the Fair Work Commission in such a case is an excellent summary of the law which applies to the issue. It emphasizes the legal hurdles which are faced, including to overcome the presumption that a resignation is a resignation, and also the impact and implications of circumstances which are personal to the employee, such as physical and mental health vulnerabilities, which the Commission will generally in the absence of clear evidence of dysfunction by the workplace be reluctant to attribute as the responsibility of the employer.

“Consideration

The onus in a case such as this, where an applicant has clearly resigned from their employment, is to prove that their resignation was not voluntary but rather was forced because of the conduct or a course of conduct engaged in by their employer.

In part the Applicant submits that because of what she says was bullying and harassment in the workplace, and a failure by the Respondent to prevent a recurrence of this, she had no option but to resign.

As to this alleged bullying and harassment I note that neither party called the Applicant’s manager to give evidence as to what may or may not have occurred in the workplace.

Considering the evidence, I accept the Applicant’s subjective view was that some of what had occurred in the workplace amounted to bullying and harassment.

Considering the evidence, I also accept Ms Arnold’s view was having conducted her investigation, that what had occurred in the workplace was not bullying and harassment.

It is for the Commission, considering all the evidence, to decide objectively whether what had occurred in the workplace was such that the Applicant was forced to resign.

Considering the Applicant’s evidence about her manager’s behaviour I accept there were some instances that objectively involved behaviour that was ill-considered or at worst abrasive, however these instances were limited and should not fairly be characterised as bullying or harassment. The balance of the manager’s behaviours complained of by the Applicant were instances of a management style that the Applicant found challenging and disapproved of.

I also note that a number of the behaviours which the Applicant complained about occurred when her manager was critiquing some deficiency he perceived in her performance.

The Applicant also was entirely dissatisfied by the Respondent’s investigation into her complaints about her manager, and Ms Arnold’s decision that no further formal action would be taken. 15

There is nothing in the evidence that demonstrates that the Respondent’s investigation into the Applicant’s complaints was in any way improper, nor that the conclusions reached were not reasonably open to it.

Whilst the Applicant apparently found her new manager’s style, and at times criticisms of her performance, upsetting I do not accept she was subjected to bullying and harassment nor that her employer failed her when she complained about this.

It is also relevant that when the Applicant resigned, she had been absent from work for more than three weeks. Consequently, she was not being exposed to the alleged bullying and harassment and had not been for the period of this absence. Neither, at this time, was the Respondent pressuring her to resume work.

The Applicant was of course entitled to challenge the Respondent’s conclusions about her allegations of bullying and harassment. In the same way she chose to apply to this Commission after she resigned seeking a remedy for alleged unfair dismissal she alternatively, before resigning, could have made an application under section 789FC of the Act for an order to stop bullying.

The Applicant was already aware of the Commission’s existence because her resignation letter mentions “Fair Work” in the penultimate paragraph. This was another option the Applicant had to deal with her concerns about her manager’s behaviour rather than resigning as she did.

The Applicant also submits that her financial circumstances also in part forced her to resign. This submission relies on the fact that for some period prior to her resignation, the Applicant had been absent from work and as such was not being paid, because the status of her workers compensation claim was pending. This claim was being investigated by the Respondent’s insurer, GIO. The Applicant was aware of this. As a result, the Applicant was still required to pay her own medical bills.

The Applicant complains that her dealings with GIO were delayed and unhelpful which caused her financial difficulty.

The Applicant’s difficult financial circumstances were however not a consequence of any conduct of the Respondent.

Conclusion

There is nothing in the evidence about how the Respondent responded to her allegations about her manager or otherwise dealt with the Applicant that demonstrates that it conducted itself with the intention of bringing her employment to an end or that objectively this was the probable result of the Respondent’s conduct.

Whilst the Applicant was very upset by her situation and what she viewed as a serious and intolerable deterioration in her employment environment, it is not correct that she had no other option than to resign when she did. The Applicant’s resignation was voluntary.

In conclusion I do not accept that the Applicant was forced to resign from her employment because of the conduct or a course of conduct engaged in by the Respondent.

The Applicant was not dismissed by the Respondent.

Consequently, this application will be dismissed and an order [PR731367] to that effect will now be issued.”

Sanches Cleaver v Madison Group Enterprises Pty Ltd (2021) FWC 3906 delivered 7 July 2021 per Williams C